                                                                                       ACCEPTED
                                                                 FILED            12-14-00329-CV
                                                                     TWELFTH COURT OF APPEALS
                                                                 15-0117
                                                                                    TYLER, TEXAS
                                                                 2/18/2015 12:28:33 PM
                                                                 tex-4193118 2/20/2015 1:22:42 PM
                                                                 SUPREME COURT OF    CATHY
                                                                                       TEXAS LUSK
                                                                 BLAKE A. HAWTHORNE, CLERK CLERK



                        NO. _______________
                                                    FILED IN
=============================================================
                                              12th COURT OF APPEALS
                                                          TYLER, TEXAS

         IN THE SUPREME COURT OF TEXAS               2/20/2015 1:22:42 PM
                                                          CATHY S. LUSK
                                                              Clerk
=============================================================


                  IN RE LAZY W DISTRICT NO. 1

____________________________________________________________________

             Original Proceeding for Writ of Mandamus to the
          Twelfth Court of Appeals at Tyler in No. 12-14-00329-CV
___________________________________________________________________

                P ETITION FOR W RIT OF M ANDAMUS
__________________________________________________________________




                                    KEITH DOLLAHITE
                                    State Bar No. 05958550
                                    M. KEITH DOLLAHITE, P.C.
                                    5457 Donnybrook Avenue
                                    Tyler, Texas 75703
                                    (903) 581-2110
                                    (903) 581-2113 (Facsimile)
                                    keith@mkdlaw.us
                IDENTITY OF PARTIES AND COUNSEL

Party                                    Attorneys
Relator / Defendant, Lazy W District     Keith Dollahite
No. 1                                    keith@mkdlaw.us
                                         M. Keith Dollahite, P.C.
                                         5457 Donnybrook Avenue
                                         Tyler, Texas 75703
                                         (903) 581-2110 (Telephone)
                                         (903) 581-2113 (Facsimile)

                                         Evan Lane (Van) Shaw
                                         van@shawlaw.net
                                         Collen R. Meyer
                                         collen@shawlaw.net
                                         Law Offices of Van Shaw
                                         2723 Fairmount
                                         Dallas, Texas 75201
                                         (214) 754-7110 (Telephone)
                                         (214) 754-7115 (Facsimile)

                                         Martin Bennett
                                         mbennett@ksbpc.com
                                         Kugle, Skelton & Bennett, P.C.
                                         130 E. Corsicana, Suite 302
                                         Athens, Texas 75751
                                         (903) 675-5151 (Telephone)
                                         (903) 677-4950 (Facsimile)

                                         Robert Haiman
                                         roberthaiman@remingtonhotels.com
                                         14185 Dallas Parkway, Suite 1150
                                         Dallas, Texas 75254
                                         (972) 778-9312 (Telephone)
                                         (972) 392-1929 (Facsimile)




                                       -i-
Party                                    Attorneys
Real Party in Interest / Plaintiff,      Hal R. Ray, Jr.
Tarrant Regional Water District          hray@popehardwicke.com
                                         Michael L. Atchley
                                         matchley@popehardwicke.com
                                         500 West 7th Street, Suite 600
                                         Fort Worth, Texas 76102-4995
                                         (817) 332-3245 (Telephone)
                                         (817) 877-4781 (Facsimile)

                                         Tom Henson
                                         thenson@rameyflock.com
                                         Ramey & Flock, P.C.
                                         100 East Ferguson, Suite 500
                                         Tyler, Texas 75702
                                         (903) 597-3301 (Telephone)
                                         (903) 597-2413 (Facsimile)
Respondent, Court of Appeals,            1517 West Front Street, Suite 354
Twelfth Court of Appeals District        Tyler, Texas 75702
                                         (903) 593-8471 (Telephone)
                                         (903) 593-2193 (Facsimile)
Defendant, Beverly Wilson Smith          Jeffrey L. Coe
                                         jeff@coelawfirm.com
                                         Law Office of Jeffrey L. Coe
                                         P.O. Box 1157
                                         Palestine, Texas 75802-1157
                                         (903) 723-0331 (Telephone)
                                         (903) 651-6851 (Facsimile)

                                         Christopher D. Tinsley
                                         chris@tinsleypc.com
                                         117 E. Tyler Street
                                         Athens, Texas 75751
                                         (903) 677-1802 (Telephone)
                                         (903) 677-1850 (Facsimile)
Intervenor, Monty Bennett                Monty Bennett, Pro Se
                                         mbennett@ahtreit.com
                                         14185 Dallas Parkway, Suite 1100
                                         Dallas, Texas 75254
                                         (972) 980-2700 (Telephone)
                                         (972) 392-1929 (Facsimile)

                                      -ii-
                                          TABLE OF CONTENTS


Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.       Does governmental immunity apply to a condemnation case before the trial
         court issues an order appointing commissioners. . . . . . . . . . . . . . . . . . . . . . 3

2.       Does governmental immunity deprive the trial court of the jurisdiction
         necessary to appoint commissioners in a condemnation case?. . . . . . . . . . . 3

3.       Does the trial court have jurisdiction to determine its own jurisdiction by ruling
         on a plea to the jurisdiction before it issues an order appointing commissioners
         in a condemnation case?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

4.       Does the Court of Appeals’s ruling that the trial court does not have subject
         matter jurisdiction before it appoints commissioners conflict with this Court’s
         decisions in State v. Nelson and PR Investments & Specialty Retailers, Inc. v.
         State?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5.       Does the Court of Appeals’s holding violate this Court’s mandate in Texas
         Dep't of Parks & Wildlife v. Miranda that the trial court must rule on
         governmental immunity “at its earliest opportunity”?. . . . . . . . . . . . . . . . . . 4

6.       Is Relator entitled to mandamus relief?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.       Lazy W does not have an adequate remedy by appeal. . . . . . . . . . . . . . . . . . 6

II.      The Court of Appeals clearly abused its discretion... . . . . . . . . . . . . . . . . . . 8

         A.        Governmental immunity applies to a condemnation case before the trial
                   court issues an order appointing commissioners. . . . . . . . . . . . . . . . . 8

                                                            -iii-
         B.        Governmental immunity deprives the trial court of the jurisdiction
                   necessary to appoint commissioners in a condemnation case. . . . . . 11

         C.        The trial court has jurisdiction to determine its own jurisdiction by
                   ruling on a plea to the jurisdiction before it issues an order appointing
                   commissioners.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

         D.        The Court of Appeals’s Opinion conflicts with this Court’s decisions in
                   State v. Nelson and PR Investments & Specialty Retailers, Inc. v. State
                   .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

         E.        The Court of Appeals’s holding violates this Court’s mandate that the
                   trial court must rule on governmental immunity “at its earliest
                   opportunity.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Certificate for Factual Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Appendix

1.       Order of the Third District Court signed on October 17, 2014, in Cause No.
         2014C-0144.

2.       Opinion and Judgment of the Twelfth Court of Appeals issued on February 11,
         2015, in Case No. 12-14-00329-CV




                                                             -iv-
                                        INDEX OF AUTHORITIES

Cases

Benat v. Dallas Cnty., 266 S.W. 539 (Tex. Civ. App. – Dallas 1924, writ ref'd)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bennett v. Brown Cnty. Water Imp. Dist. No. 1, 272 S.W.2d 498 (Tex. 1954). . . . 8

City of Tyler v. Beck, 196 S.W.3d 784 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . 17

Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, 331 S.W.3d 91(Tex.
      App. – Dallas 2010), rev'd on other grounds, 369 S.W.3d 845 (Tex. 2012)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013). . . . . . . . . . . 15

Federal Maritime Com'n v. South Carolina State Ports Authority, 122 S. Ct. 1864
     (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619 (Tex.
    2008) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985).. . . . . . . . . . . . . 2

Harrell v. State, 286 S.W.3d 315 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151 (Tex. 2007)
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 15, 16

In re Essex Ins. Co., 2014 WL 6612590 (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . 4, 6

In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619 (Tex. 2007) . . . . . . . . . . . . . . . . . . . 7

In re Tarrant Regional Water District, No. 12-14-00329-CV, 2015 WL 545783 (Tex.
       App. – Tyler 2015, orig. proc.) (not yet released for publication). . . passim

Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014).. . . . . . . . . . . . . . . . . 9

LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73 (Tex. 2011). . . . . . . 15

Lubbock Cnty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297
     (Tex. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


                                                             -v-
Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845 (Tex.
     2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pinnacle Gas Treating, Inc. v. Read, 160 S.W.3d 564 (Tex. 2005).. . . . . . . . 11, 13

PR Investments & Specialty Retailers, Inc. v. State, 251 S.W.3d 472 (Tex. 2008)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 17-18

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S. Ct. 684 (1993)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) . . . . . . . . . . . 19

Ryder Integrated Logistics, Inc. v. Fayette Cnty., 2015 WL 496303 (Tex. 2015)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

State v. Brown, 262 S.W.3d 365 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

State v. Montgomery Cnty., 262 S.W.3d 439 (Tex. App. – Beaumont 2008, no pet.)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14

State v. Nelson, 334 S.W.2d 788 (Tex. 1960).. . . . . . . . . . . . . . . . . . . . . . . 4, 17-18

Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).. . . 3, 4,
                                                                           11, 19

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006). . . . . . . . . . . . . . . . . . 7, 9, 11

Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986). . . . . . . . . . . 11

Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003) .. . . . . . . . . . . . 8

Zachry Const. Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d 98 (Tex.
     2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


Statutes

TEX. CIV. PRAC. & REM. CODE § 51.014.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. GOV'T CODE § 22.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEX. GOV'T CODE § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12, 14


                                                             -vi-
TEX. PROP. CODE § 21.001, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8-9, 15, 18

TEX. SPEC. DIST. LOC. LAWS CODE § 8380.002. . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

TEX. WATER CODE § 49.222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13, 14




                                                 -vii-
                          STATEMENT OF THE CASE

      Nature of Proceeding. In this eminent domain case, one governmental entity

seeks to condemn public property owned by another governmental entity.

       Respondent. The Court of Appeals, Twelfth Court of Appeals District, Tyler,

Texas, is the Respondent.

      Respondent's Action. The Third District Court, Henderson County, Texas,

issued an order that the court would first hear and rule on Relator's plea to the

jurisdiction based upon governmental immunity before the court addressed the issue

of the appointment of special commissioners for condemnation (CR 619) (App. 1).

In a mandamus proceeding, Respondent, the Twelfth Court of Appeals, held that the

trial court’s order was “void” because the trial court did not have jurisdiction to

determine its own jurisdiction. The Court of Appeals ruled that during the first phase

of a condemnation case, the trial court has only “limited” jurisdiction to appoint

commissioners and will not acquire “subject matter jurisdiction” over the case until

and unless the commissioners issue an award and a party objects to the award

(Opinion at pgs. 2-4, App. 2) (CR 843). Despite Relator’s undisputed governmental

immunity, the Tyler Court held “the trial court was without jurisdiction to refuse to

appoint special commissioners in this condemnation proceeding” (Opinion at pg. 4).

      Proceedings in the Court of Appeals. On November 10, 2014, Real Party in

Interest, Tarrant Regional Water District, filed its petition for writ of mandamus in

the Twelfth Court of Appeals (CR 652). On January 5, 2015, Relator, Lazy W District

No. 1, filed its response (CR 810). On February 11, 2015, the Court of Appeals issued


                                          1
its Opinion and Judgment (CR 843). The Court of Appeals prohibited the trial court

from considering Relator’s plea to the jurisdiction and ordered the trial court to

immediately issue an order appointing special commissioners (Opinion at pg. 4).

Chief Justice James T. Worthen authored the Opinion; Justices Brian Hoyle and Greg

Neeley participated. In re Tarrant Regional Water District, No. 12-14-00329-CV,

2015 WL 545783 (Tex. App. – Tyler 2015, orig. proc.) (not yet released for

publication). On February 13, 2015, Relator, Lazy W District No. 1, filed its motion

for rehearing and an emergency motion for stay until the Court of Appeals rules on

such motion for rehearing (CR 850, 869). At the time of the filing of this petition, the

Court of Appeals had not yet ruled on such motions. As a result, Relator was forced

to file this petition to prevent the trial court from signing the order appointing

commissioners on February 19, 2015 (see the accompanying emergency motion for

stay).

                        STATEMENT OF JURISDICTION

         The Supreme Court may issue a writ of mandamus “agreeable to the principles

of law” against a court of appeals. TEX. GOV'T CODE § 22.002. The Supreme Court

has jurisdiction in this original proceeding to review the issuance of the writ of

mandamus by the Tyler Court of Appeals. Ginsberg v. Fifth Court of Appeals, 686

S.W.2d 105, 107 (Tex. 1985).




                                           2
                             ISSUES PRESENTED

1.   The Court of Appeals held that “a condemnation proceeding does not become
     a ‘case’ until the commissioners have made their award and an objection to it
     has been filed in the trial court. Consequently, Lazy W's plea to the
     jurisdiction, filed during the administrative phase, was premature, and the trial
     court's only course of action was to ignore it until an objection to the
     commissioners' award had been filed” (Opinion at pg. 4).

     Does governmental immunity apply to a condemnation case before the trial
     court issues an order appointing commissioners?

2.   According to the Court of Appeals, “[d]uring the administrative phase, the trial
     court’s jurisdiction is limited to appointing the commissioners, receiving their
     opinion as to value, and rendering judgment based upon the commissioners’
     award.... Any judgment or order made outside of the statutory authority is
     void” (Opinion at pg. 3).

     Governmental immunity, however, “deprives a trial court of subject matter
     jurisdiction,” unless the Legislature has waived such immunity. Texas Dep't of
     Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).

     Does governmental immunity deprive the trial court of the jurisdiction
     necessary to appoint commissioners in a condemnation case?

3.   The Court of Appeals held that “the trial court was without jurisdiction to
     refuse to appoint special commissioners in this condemnation proceeding.
     Accordingly, its ... order refusing to appoint special commissioners is outside
     its statutory authority and therefore void” (Opinion at pg. 4).

     “Courts always have jurisdiction to determine their own jurisdiction.” Houston
     Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007).

     Does the trial court have jurisdiction to determine its own jurisdiction by ruling
     on a plea to the jurisdiction before it issues an order appointing commissioners
     in a condemnation case?




                                         3
4.   The Court of Appeals ruled that the “filing of the original objection converts
     the condemnation proceeding, which has been administrative thus far, into a
     judicial proceeding and invests the trial court with jurisdiction of the subject
     matter of the proceeding .... But without a timely filed objection to the
     commissioners’ award, a condemnation proceeding never becomes a civil case
     and the trial court does not gain subject matter jurisdiction” (Opinion at pg. 3).

     In State v. Nelson, the Supreme Court held that the trial court acquires subject
     matter jurisdiction immediately upon the filing of a proper petition for
     condemnation. 334 S.W.2d 788 (Tex. 1960). In PR Investments & Specialty
     Retailers, Inc. v. State, the Supreme Court ruled that the trial court retains such
     jurisdiction throughout the case; its jurisdiction is not conditioned upon or
     dependent on any later action of the commissioners or the parties. 251 S.W.3d
     472 (Tex. 2008).

     Does the Court of Appeals’s ruling that the trial court does not have subject
     matter jurisdiction before it appoints commissioners conflict with this Court’s
     decisions in State v. Nelson and PR Investments & Specialty Retailers, Inc. v.
     State?

5.   The Court of Appeals held that in a condemnation case, a trial court is not
     required to rule on a governmental entity's plea to the jurisdiction before taking
     any other action in a case (Opinion at pg. 4).

     In Texas Dep't of Parks & Wildlife v. Miranda, the Supreme Court mandated
     that a trial court must rule on a governmental entity’s plea to the jurisdiction
     “at its earliest opportunity.” 133 S.W.3d 217, 226 (Tex. 2004).

     Does the Court of Appeals’s holding violate this Court’s mandate in Texas
     Dep't of Parks & Wildlife v. Miranda that the trial court must rule on
     governmental immunity “at its earliest opportunity”?

6.   Mandamus relief is available to correct a clear abuse of discretion when the
     relator does not have an adequate remedy by appeal, balancing the benefits of
     mandamus review against the detriments. In re Essex Ins. Co., 2014 WL
     6612590 (Tex. 2014).

     Is Relator entitled to mandamus relief?




                                          4
                             STATEMENT OF FACTS

      Real Party in Interest / Plaintiff, Tarrant Regional Water District (“TRWD”),

filed a petition for condemnation against Relator / Defendant, Lazy W District No.

1 (“Lazy W”) – a governmental entity – to take by eminent domain a permanent water

pipeline easement and right of way covering 11.623 acres of land owned by Lazy W

(CR 1-7). The trial court initially issued an order appointing commissioners (CR 28-

29). Lazy W filed a plea to the jurisdiction, asserting that its governmental immunity

bars this condemnation suit, and moved to vacate the order appointing commissioners

(CR 40). The trial court then vacated its order appointing commissioners (CR 496).

The sitting judge recused himself, and a visiting judge was appointed, who also

recused herself (CR 545, 614). The Hon. Joe D. Clayton was then appointed to serve

as the presiding judge. After a hearing, Judge Clayton signed an order stating: “the

court at this time declines to appoint special commissioners in this case and will only

do so, if at all, after a hearing has been set and held on the plea to the jurisdiction of

[Lazy W] and a ruling is made by the court on that plea” (CR 619). Instead of

proceeding with a hearing on the plea to the jurisdiction, however, TRWD filed a

petition for writ of mandamus in the Court of Appeals, which conditionally granted

the writ, prohibited the trial court from ruling on Lazy W’s plea to the jurisdiction,

and ordered the trial court to immediately appoint commissioners (Opinion at pg. 4).




                                            5
                                  ARGUMENT

I.    Lazy W does not have an adequate remedy by appeal.

      Mandamus relief is available to correct a clear abuse of discretion when the

relator does not have an adequate remedy by appeal, balancing the benefits of

mandamus review against the detriments. In re Essex Ins. Co., 2014 WL 6612590

(Tex. 2014). The Court of Appeals clearly abused its discretion in granting a writ of

mandamus against the trial court for the reasons explained below.

      Lazy W does not have an adequate remedy by appeal. Lazy W is a municipal

utility district and a governmental entity. TEX. SPEC. DIST. LOC. LAWS CODE §

8380.002. The Court of Appeals has ordered the trial court to immediately appoint

commissioners for this condemnation proceeding against Lazy W’s property (Opinion

at pg. 4). Once that occurs, the commissioners must “promptly schedule a hearing.”

TEX. PROP. CODE § 21.015(a). After the hearing, the commissioners will render a

written award and “assess damages ... according to the evidence presented at the

hearing.” Id. § 21.042(a). TRWD will then obtain immediate possession of the

property of Lazy W simply by depositing the amount of the award with the court. Id.

§ 21.021. TRWD will remain in possession of Lazy W’s land throughout the

pendency of the litigation until it is concluded. Id. § 21.021. Lazy W will be forced

to file objections to the commissioners' award, and the case will proceed to trial as

any other civil case, with Lazy W divested of its own property during the pendency

of this case. Id. § 21.018.




                                         6
      The fundamental purpose of governmental immunity is to protect government

property. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006). The Court

of Appeals has prohibited the trial court from ruling on Lazy W’s plea to the

jurisdiction for governmental immunity until after Lazy W has lost possession of its

land to TRWD. In doing so, the Court of Appeals has denied Lazy W the primary

benefit of its governmental immunity: the protection of Lazy W’s public property. In

addition, if the trial court had proceeded as it planned, and denied Lazy W’s plea to

the jurisdiction, Lazy W would have immediately filed an accelerated appeal and

obtained the automatic stay of all condemnation proceedings during the pendency of

such interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8), (b). The

Court of Appeals has denied Lazy W the protection of its statutory rights to an

accelerated appeal and automatic stay of the condemnation case.

      The Court of Appeals has ordered a court without jurisdiction to appoint

commissioners and proceed with a condemnation case, the result of which will enable

one governmental entity to obtain possession of public property owned by another

governmental entity. Mandamus relief is available to provide Lazy W with the

benefits of its governmental immunity. See In re Sw. Bell Tel. Co., L.P., 235 S.W.3d

619, 623 (Tex. 2007) (mandamus is available to correct denial of plea to the

jurisdiction).




                                         7
II.   The Court of Appeals clearly abused its discretion.

      A.     Governmental immunity applies to a condemnation case before the trial
             court issues an order appointing commissioners.

      Lazy W is “a municipal utility district created under Section 59, Article XVI,

Texas Constitution.” TEX. SPEC. DIST. LOC. LAWS CODE § 8380.002. A municipal

utility district is “a governmental agency and body politic” that has governmental

immunity. Bennett v. Brown Cnty. Water Imp. Dist. No. 1, 272 S.W.2d 498, 502

(Tex. 1954). Governmental immunity protects a political subdivision like Lazy W to

the same extent that sovereign immunity protects the State and its divisions. Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003).

      The Court of Appeals held that “a condemnation proceeding does not become

a ‘case’ until the commissioners have made their award and an objection to it has

been filed in the trial court. Consequently, Lazy W's plea to the jurisdiction, filed

during the administrative phase, was premature, and the trial court's only course of

action was to ignore it until an objection to the commissioners' award had been filed”

(Opinion at pg. 4). Thus, the Court held that governmental immunity cannot apply to

a condemnation case until and unless a party files an objection to the commissioners’

award. This is clearly wrong for at least four reasons.

      First, governmental immunity arises from Lazy W’s status as a governmental

entity. Governmental immunity does not depend upon or require the action of other

parties – i.e., the commissioners in issuing an award or a party in objecting to the

award. Under the condemnation statute, the moment when the commissioners issue

their award, TRWD can obtain immediate possession of the property of Lazy W

                                          8
simply by depositing the amount of the award with the court. TEX. PROP. CODE §

21.021. Lazy W’s governmental immunity arose when TRWD filed its condemnation

petition because the fundamental purpose of governmental immunity is to protect

government property. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32 (Tex. 2006).

Immunity applies at this stage of the condemnation suit to accomplish the purpose of

protecting Lazy W’s public property.

       Second, governmental immunity applies to a condemnation action because it

is a “case” or “suit” the instant it is filed. A “suit” is “any proceeding in a court of

justice by which an individual pursues that remedy in a court of justice which the law

affords him.” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 564 (Tex. 2014). The

statutory basis for TRWD's power of eminent domain and condemnation case against

Lazy W expressly refers to this action as a “suit,” TEX. WATER CODE § 49.222(b), and

says the “right of eminent domain shall be exercised in the manner provided in

Chapter 21, Property Code.” Chapter 21 in turn refers to condemnation actions

nineteen times as “cases” and twice as “suits.” TEX. PROP. CODE CH. 21. Thus, this

condemnation proceeding is a “suit” to which governmental immunity applies, even

at its initial stage.

       Third, in Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, the

Dallas Court of Appeals held sovereign immunity barred that condemnation

proceeding. 331 S.W.3d 91, 99 (Tex. App. – Dallas 2010), rev'd on other grounds,

369 S.W.3d 845 (Tex. 2012). After this Court granted review, the Legislature

amended the condemnation statute in that case to provide for an express waiver of


                                           9
sovereign immunity for that type of condemnation proceeding. 369 S.W.3d at 849-

850. In its opinion, this Court stated: “We assume, without deciding, that

governmental entities are immune from condemnation suits.” 369 S.W.3d 845, 849

(Tex. 2012).

      Finally, in addition to the Dallas Court in Dallas Area Rapid Transit v. Oncor

Elec. Delivery Co. LLC, the Beaumont Court has recognized that sovereign immunity

applies to a condemnation proceeding, although the Beaumont Court held that the

statute in question in that case expressly waived such immunity. State v. Montgomery

County, 262 S.W.3d 439, 443 (Tex. App. – Beaumont 2008, no pet.). By contrast, the

Tyler Court has held that a condemnation proceeding is merely “administrative” until

a party objects to the commissioners’ award, thereby converting the proceeding to a

“judicial” case to which governmental immunity could apply (Opinion at pgs. 2-3).

But even if the proceeding were merely “administrative,” sovereign immunity would

still apply. See Federal Maritime Com'n v. South Carolina State Ports Authority, 122

S. Ct. 1864 (2002) (sovereign immunity barred federal agency’s administrative action

against state agency).

      In short, the Court of Appeals clearly abused its discretion in ruling that Lazy

W’s governmental immunity does not apply in this condemnation case “until the

commissioners have made their award and an objection to it has been filed in the trial

court” (Opinion at pg. 4).




                                         10
      B.     Governmental immunity deprives the trial court of the jurisdiction
             necessary to appoint commissioners in a condemnation case.

      Before a trial court can issue a valid order in any type of case – condemnation

or otherwise – the court must have jurisdiction to issue the order. “An order is void

when a court has no power or jurisdiction to render it.” Urbish v. 127th Judicial Dist.

Court, 708 S.W.2d 429, 431 (Tex. 1986). Thus, if a court – such as a justice of the

peace court – does not have the necessary jurisdiction to sign an order appointing

commissioners, its order purporting to appoint commissioners would be void. Id. The

trial court must possess and exercise jurisdiction to appoint commissioners;

otherwise, it has no power even to begin “the administrative phase” of a

condemnation case. See Pinnacle Gas Treating, Inc. v. Read, 160 S.W.3d 564 (Tex.

2005).

      In its Opinion, the Court of Appeals recognized that the trial court has

jurisdiction during the first phase of a condemnation proceeding by stating: “During

the administrative phase, the trial court's jurisdiction is limited to appointing the

commissioners, receiving their opinion as to value, and rendering judgment based

upon the commissioners' award” (Opinion at pg. 3). “Limited” or not, the trial court

must have jurisdiction to issue an order appointing commissioners.

      Governmental immunity, however, “deprives a trial court of subject matter

jurisdiction for lawsuits in which the state or certain governmental units have been

sued,” unless the Legislature has expressly waived such immunity in clear and

unambiguous language. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

224 (Tex. 2004); Tooke v. City of Mexia, 197 S.W.3d 325, 329 (Tex. 2006); TEX.

                                          11
GOV'T CODE § 311.034. “Immunity implicates a court's subject-matter jurisdiction

over pending claims, and without jurisdiction the court cannot proceed at all in any

cause ....” Zachry Const. Corp. v. Port of Houston Auth. of Harris Cnty., 449 S.W.3d

98 (Tex. 2014). Immunity from suit “bars suit against the entity altogether.” Lubbock

Cnty. Water Control & Imp. Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300

(Tex. 2014). Thus, Lazy W’s governmental immunity deprives the trial court of the

jurisdiction necessary to appoint commissioners and bars this condemnation suit,

unless the Legislature waived such immunity.

      Assume for a moment that TRWD filed its petition for condemnation in the

justice of the peace court instead of in the district court. In response, Lazy W filed a

plea to the jurisdiction asserting that the justice of the peace court does not have

jurisdiction. The justice of the peace issued an order stating the court would first rule

on the plea to the jurisdiction before addressing the issue of appointing

commissioners. Unhappy with such order, TRWD filed a petition for writ of

mandamus, asking the Court of Appeals to order the justice of the peace to appoint

commissioners before deciding the plea to the jurisdiction so that TRWD can obtain

possession of Lazy W's property during the pendency of the case and thereby

circumvent Lazy W’s governmental immunity. The Court of Appeals ordered the

justice of the peace to appoint commissioners, even though the justice of the peace

does not have jurisdiction to do so. TEX. PROP. CODE § 21.001. Should this Court then

vacate the Court of Appeals’s order? Of course – for the same reason that exists in

this case.


                                           12
      The trial court does not have jurisdiction to appoint commissioners because

Lazy W’s governmental immunity divests the trial court of such jurisdiction. Lazy

W's governmental immunity negates the trial court's threshold jurisdiction that it must

have to take the first step of appointing commissioners, a threshold jurisdiction the

Supreme Court recognized the trial court must have in Pinnacle Gas Treating, Inc.

v. Read, 160 S.W.3d 564 (Tex. 2005). If the trial court does not have and exercise

such threshold subject matter jurisdiction, it cannot appoint commissioners. See Benat

v. Dallas Cnty., 266 S.W. 539, 540 (Tex. Civ. App. – Dallas 1924, writ ref'd)

(petition filed by a condemnor that did not have the power of eminent domain

conferred no jurisdiction on the trial court to appoint commissioners).

      The Court of Appeals did not address the issue of whether the Legislature has

waived Lazy W’s immunity for a condemnation case because the Court held

governmental immunity does not apply “until the commissioners have made their

award and an objection to it has been filed in the trial court” (Opinion at pg. 4). To

establish a waiver of immunity, TRWD was required in its petition to “affirmatively

demonstrate the court's jurisdiction by alleging a valid waiver of immunity.” Ryder

Integrated Logistics, Inc. v. Fayette Cnty., 2015 WL 496303 (Tex. 2015). But in its

petition, TRWD did not allege waiver; it alleged only that it has the right to condemn

Lazy W’s property under TEX. WATER CODE § 49.222 (CR 2-3).

      Section § 49.222 does not waive Lazy W’s immunity; it does not grant the

power of eminent domain over public land or otherwise waive Lazy W’s immunity

in clear and unambiguous language. When the Legislature waives a governmental


                                          13
entity’s immunity to a condemnation case, so that another governmental entity can

acquire its property by condemnation, the Legislature does so in clear and

unambiguous language, as required by TEX. GOV'T CODE § 311.034. For example,

one statute provides: “For transmission facilities ordered or approved by the [PUC]

..., the rights extended to an electric corporation under Section 181.004 include all

public land, except land owned by the state, on which the commission has approved

the construction of the line.” This statute satisfied the standard for a waiver of

immunity. Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d

845, 848 (Tex. 2012). Another statues states: “A county may exercise the right of

eminent domain to condemn and acquire land ... if the acquisition is necessary for ...

[a] public purpose authorized by law.... The right of eminent domain conferred by this

section extends to public or private land, but not to land used for cemetery purposes.”

This statute also satisfied the standard for a waiver of immunity. State v. Montgomery

Cnty., 262 S.W.3d 439, 443 (Tex. App. – Beaumont 2008, no pet.). By contrast, the

statutory basis for TRWD’s action against Lazy W does not expressly grant TRWD

the power to condemn “public land.” TEX. WATER CODE §49.222. As a result, it does

not clearly and unambiguously waive Lazy W’s immunity to this condemnation case.

      In summary, the Court of Appeals clearly erred in holding that Lazy W’s

immunity does not divest the trial court of its jurisdiction to appoint commissioners

during the first phase of a condemnation case (Opinion at pg. 3).




                                          14
      C.       The trial court has jurisdiction to determine its own jurisdiction by
               ruling on a plea to the jurisdiction before it issues an order appointing
               commissioners.

      According to the Court of Appeals, “the trial court was without jurisdiction to

refuse to appoint special commissioners in this condemnation proceeding.

Accordingly, its ... order refusing to appoint special commissioners is outside its

statutory authority and therefore void” (Opinion at pg. 4).The trial court did not

“refuse” to appoint commissioners; instead, it simply ruled it will first address Lazy

W's plea to the jurisdiction, and after ruling on such plea, then address TRWD's

request for an order appointing commissioners (CR 619). Such order complies with

the guiding principle that “[c]ourts always have jurisdiction to determine their own

jurisdiction.” Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158

(Tex. 2007). The Court has applied this principle often in ruling on governmental

immunity. See, e .g., Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex.

2013); LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011).

      The condemnation statute does not override this principle: TEX. PROP. CODE

CH. 21 uses the word “jurisdiction” in only nine sections,1 and no section negates the

trial court’s jurisdiction to determine its own jurisdiction. To the contrary, the statute

says a “district court may determine all issues, including the authority to condemn

property and the assessment of damages, in any suit” for condemnation. TEX. PROP.

CODE § 21.003. Jurisdiction to “determine all issues” surely includes jurisdiction to

determine the bedrock issue of whether Lazy W’s governmental immunity deprives


      1
          §§ 21.001, 21.002, 21.003, 21.013, 21.061, 21.025, 21.042, 21.0121, 21.047.

                                               15
the trial court of the jurisdiction required to appoint commissioners.

      Prior to the Opinion of the Court of Appeals, no other appellate court had ever

held that the trial court in a condemnation case does not have jurisdiction to

determine its own jurisdiction. There is nothing about the jurisdiction of a trial court

before the appointment of commissioners that negates its jurisdiction to determine its

own jurisdiction. A trial court “always” has jurisdiction to determine its own

jurisdiction. Harrell v. State, 286 S.W.3d 315, 317 (Tex. 2009); Houston Mun.

Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007).

      The Court of Appeals’ Opinion will have a far-reaching impact because 9,245

entities in Texas claim to possess the power of eminent domain.2 The Opinion

enables each of those 9,245 public and private entities to file condemnation cases and

take possession of the property of other governmental entities before the trial court

can rule on pleas to the jurisdiction. By contrast, allowing the trial court to rule on a

plea to the jurisdiction before it appoints commissioners will preserve the protection

of governmental immunity and promote judicial economy. Consequently, the Court

of Appeals erred in prohibiting the trial court from ruling on Lazy W's plea to the

jurisdiction at this stage of the condemnation case.




      2
          http://window.texas.gov/specialrpt/eminent_domain/index.html

                                              16
      D.     The Court of Appeals’s Opinion conflicts with this Court’s decisions in
             State v. Nelson and PR Investments & Specialty Retailers, Inc. v. State.

      According to the Court of Appeals, the “filing of the original objection

converts the condemnation proceeding, which has been administrative thus far, into

a judicial proceeding and invests the trial court with jurisdiction of the subject matter

of the proceeding .... But without a timely filed objection to the commissioners’

award, a condemnation proceeding never becomes a civil case and the trial court does

not gain subject matter jurisdiction” (Opinion at pg. 3).

      In State v. Nelson, this Court held that the trial court acquires subject matter

jurisdiction immediately upon the filing of a proper petition for condemnation. 334

S.W.2d 788 (Tex. 1960). Opinions sometimes refer to the first phase of a

condemnation case as "administrative," City of Tyler v. Beck, 196 S.W.3d 784, 786

(Tex. 2006), and the second phase as “judicial” or “appellate.” Id.; PR Investments

& Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 473 (Tex. 2008). This

terminology is unfortunate because it creates confusion about jurisdiction, which has

happened in this case. Regardless of the terminology used, the trial court's subject

matter jurisdiction arises when the condemnor files its petition for condemnation.

State v. Nelson, 334 S.W.2d at 790. Otherwise, the trial court could not proceed to

issue an order appointing commissioners.

      The Supreme Court applied this rule in PR Investments & Specialty Retailers,

Inc. v. State, and held the trial court retains such jurisdiction throughout the case. The

trial court’s subject matter jurisdiction is not conditioned upon or dependent on any

later action of the commissioners or the parties. 251 S.W.3d 472 (Tex. 2008). The

                                           17
trial court retains the subject matter jurisdiction it acquires upon the filing of the

petition, even if the condemnor goes to trial on a different plan than the one it

submitted to the commissioners. Id. at 476. See also State v. Brown, 262 S.W.3d 365,

370 (Tex. 2008) (condemnor’s amendment of its petition after the commissioners

issue their award does not affect the trial court’s jurisdiction); FKM P'ship, Ltd. v. Bd.

of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 626 (Tex. 2008) (same).

      The Court of Appeals held the trial court does not acquire subject matter

jurisdiction unless and until the commissioners issue their award and a party objects

to it (Opinion at pg. 3). If that were true, then if no party objected to the award, the

trial court would not have subject matter jurisdiction to enter a final judgment. Yet

the statute clearly provides that if “no party in a condemnation proceeding files timely

objections to the findings of the special commissioners, the judge of the court that has

jurisdiction of the proceeding shall adopt the commissioners' findings as the judgment

of the court, record the judgment in the minutes of the court, and issue the process

necessary to enforce the judgment.” TEX. PROP. CODE § 21.061. Hence, the statute

recognizes that the trial court has subject matter jurisdiction without any party

objecting to the commissioners’ award.

      The Court of Appeals’s holding that the trial court does not yet have subject

matter jurisdiction at this stage of the proceeding conflicts with State v. Nelson and

PR Investments & Specialty Retailers, Inc. v. State. As a result, the Court of Appeals

clearly abused its discretion by prohibiting the trial court from ruling on Lazy W's

plea to the jurisdiction.


                                           18
      E.     The Court of Appeals’s holding violates this Court’s mandate that the
             trial court must rule on governmental immunity “at its earliest
             opportunity.”

      A trial court must rule on a governmental entity's plea to the jurisdiction “at its

earliest opportunity.” Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). Immunity “protects the government from the distraction and

expenses that would ensue if citizens could sue the government whenever they

pleased.” Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371, 382 (Tex. 2006)

(Brister, J., concurring). A principal benefit of governmental immunity is the prompt

termination of a lawsuit for which the Legislature has not waived immunity. Any

delay in the trial court’s decision on governmental immunity diminishes that benefit

and causes the entity to incur unnecessary expenses and risks. See Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S. Ct. 684, 688 (1993) (“the

value to the States of their Eleventh Amendment immunity, like the benefit conferred

by qualified immunity to individual officials, is for the most part lost as litigation

proceeds ...”). The Court of Appeals clearly abused its discretion in ordering the trial

court to delay its determination of Lazy W’s immunity until after the commissioners

have issued their award and a party objects to it. Such delay violates this Court’s

mandate in Texas Dep't of Parks & Wildlife v. Miranda and deprives Lazy W of the

benefits of its immunity.




                                          19
                                        PRAYER

       The trial court held it would determine its own jurisdiction by first ruling on

Lazy W’s plea to the jurisdiction before it addresses TRWD’s request for an order

appointing commissioners (CR 619). The Court of Appeals ordered the trial court to

vacate such order, to immediately appoint commissioners, and to postpone a ruling

on Lazy W’s plea to the jurisdiction until after the commissioners issue their award.

As a result, TRWD will obtain possession of Lazy W’s land before the trial court

rules on Lazy W’s plea to the jurisdiction, and Lazy W will lose the protection of its

governmental immunity. The Court of Appeals clearly abused its discretion in issuing

such order. Lazy W does not have an adequate remedy by appeal. Accordingly, Lazy

W urges the Court to grant this petition and to issue a writ ordering the Court of

Appeal to vacate its Opinion and Judgment. Lazy W also requests the general and

special relief at law or in equity it is entitled to receive.

                                          Respectfully submitted,

                                          M. KEITH DOLLAHITE, P.C.
                                          5457 Donnybrook Avenue
                                          Tyler, Texas 75701
                                          (903) 581-2110
                                          (903) 581-2113 (Facsimile)
                                          keith@mkdlaw.us


                                               /s/ Keith Dollahite
                                          By:________________________________
                                               M. Keith Dollahite
                                               State Bar No. 05958550




                                            20
                                       EVAN LANE (VAN) SHAW
                                       State Bar No. 18140500
                                       van@shawlaw.net
                                       COLLEN R. MEYER
                                       State Bar No. 24074709
                                       collen@shawlaw.net
                                       LAW OFFICES OF VAN SHAW
                                       2723 Fairmount
                                       Dallas, Texas 75201
                                       (214) 754-7110 (Telephone)
                                       (214) 754-7115 (Facsimile)

                                       MARTIN BENNETT
                                       State Bar No. 00795037
                                       mbennett@ksbpc.com
                                       KUGLE, SKELTON & BENNETT, P.C.
                                       130 E. Corsicana, Suite 302
                                       Athens, Texas 75751
                                       (903) 675-5151 (Telephone)
                                       (903) 677-4950 (Facsimile)

                                       ROBERT HAIMAN
                                       State Bar No. 00796690
                                       roberthaiman@remingtonhotels.com
                                       14185 Dallas Parkway, Suite 1150
                                       Dallas, Texas 75254
                                       (972) 778-9312 (Telephone)
                                       (972) 392-1929 (Facsimile)


               CERTIFICATE FOR FACTUAL STATEMENTS

      Pursuant to TEX. R. APP. P. 52.3(j) and 52.4, I certify that I have reviewed the
foregoing petition and concluded that every factual statement in the petition is
supported by competent evidence included in the appendix or record.

                                            /s/ Keith Dollahite
                                       ___________________________________




                                         21
                       CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document contains 4,087
words based on the word count of the computer program used to prepare the
document, excluding the sections not counted under TEX. R. APP. P. 9.4(i)(1), which
is below the maximum of 4,500 words in TEX. R. APP. P. 9.4(i)(2).

                                              /s/ Keith Dollahite
                                         ___________________________________

                          CERTIFICATE OF SERVICE

       A copy of this document was served by email – unless indicated otherwise –
to the parties listed below on February 18, 2015.

                                              /s/ Keith Dollahite
                                         ___________________________________

 Hal R. Ray, Jr.                             Christopher D. Tinsley
 Michael L. Atchley                          117 E. Tyler Street
 500 West 7th Street, Suite 600              Athens, Texas 75751
 Fort Worth, Texas 76102-4995

 Tom Henson                                  Monty Bennett
 Ramey & Flock, P.C.                         14185 Dallas Parkway, Suite 1100
 100 East Ferguson, Suite 500                Dallas, Texas 75254
 Tyler, Texas 75702

 Jeffrey L. Coe                              Twelfth Court of Appeals
 Law Office of Jeffrey L. Coe                1517 West Front Street, Suite 354
 P.O. Box 1157                               Tyler, Texas 75702
 Palestine, Texas 75802-1157                 (Via Hand Delivery)

 Christopher D. Tinsley                      Honorable Joe Clayton
 117 E. Tyler Street                         100 E. Ferguson, Suite 1114
 Athens, Texas 75751                         Tyler, Texas 75702




                                           22
                       INDEX OF APPENDIX

Tab 1   Order of the Third District Court signed on October 17, 2014, in Cause
        No. 2014C-0144.

Tab 2   Opinion and Judgment of the Twelfth Court of Appeals issued on
        February 11, 2015, in Case No. 12-14-00329




                                   23
                           Tab 1

Order of the Third District Court signed on October 17, 2014
                 in Cause No. 2014C-0144
                       Tab 2

Opinion and Judgment of the Twelfth Court of Appeals
                                       NO. 12-14-00329-CV

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

IN RE: TARRANT REGIONAL WATER                           §

DISTRICT, A WATER CONTROL                               §       ORIGINAL PROCEEDING

AND IMPROVEMENT DISTRICT                                §

                                                  OPINION
        Tarrant Regional Water District (TRWD) filed a petition for writ of mandamus
challenging the trial court’s order refusing to appoint special commissioners during the
administrative phase of its condemnation proceeding in Henderson County.1 We conditionally
grant the petition.


                                               BACKGROUND
        TRWD filed a petition in condemnation, by which it sought to acquire by eminent
domain 7.820 acres of the Lazy W District No. 1 as a permanent easement for a water pipeline.
Lazy W filed a plea to the jurisdiction, asserting that governmental immunity bars TRWD’s
condemnation proceeding.
        On October 17, 2014, the trial court signed an order refusing to appoint special
commissioners. The order provided further that the court “[would] only do so, if at all, after a
hearing has been set and held on the Plea to the Jurisdiction of Defendant Lazy W District No. 1
and a ruling is made by the Court on that Plea.” TRWD seeks mandamus relief from this Court.




        1
         The real party in interest is Lazy W District No. 1, a municipal utility district. The respondent is the
Honorable Joe D. Clayton, sitting by assignment in the Third Judicial District Court of Henderson County, Texas.


                                                       1
                                                                                        Record Page 000843
                                 PREREQUISITES TO MANDAMUS
       Generally, mandamus relief is appropriate only when the trial court clearly abuses its
discretion and there is no adequate appellate remedy. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135-36 (Tex. 2004). A trial court has no discretion in determining what the law is
or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus,
a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of
discretion and may result in the issuance of a writ of mandamus. See id.
       Mandamus is available when a trial court abuses its discretion by entering a void order,
regardless of whether appeal is an adequate remedy. See In re Sw. Bell Tel. Co., 35 S.W.3d 602,
603 (Tex. 2000).


                               THE TRIAL COURT’S JURISDICTION
       A condemnation proceeding is not within the general jurisdiction of the court; any power
to act is special and depends upon the eminent domain statute. In re Energy Transfer Fuel, LP,
250 S.W.3d 178, 180-81 (Tex. App.–Tyler 2008, orig. proceeding).                 The Texas land
condemnation scheme is a two part procedure involving first an administrative proceeding, and
then, if necessary, a judicial proceeding. See TEX. PROP. CODE ANN. §§ 21.001-.103 (West
2014); Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984).
       When an entity with eminent domain authority wants to acquire real property for public
use but cannot agree with the landowner on the amount of damages, that entity must file a
condemnation petition in the proper court, either district court or county court at law, of the
county in which the land is located. Id. §§ 21.001, 21.012(a), 21.013(a) (West 2014); see also
Amason, 682 S.W.2d at 241. The judge of the court in which a condemnation petition is filed or
to which an eminent domain proceeding is assigned shall appoint three disinterested property
owners who reside in the county as special commissioners. TEX. PROP. CODE ANN. § 21.014(a)
(West 2014). These special commissioners must promptly schedule an evidentiary hearing on
the amount of damages due the property owners, assess the amount of damages, and file their
decision with the trial court. See TEX. PROP. CODE ANN. §§ 21.014(a), 21.015 (West 2014);
Brazos River Conservation & Reclamation Dist. v. Allen, 171 S.W.2d 842, 846-47 (Tex. 1943).
       From the time the condemnor files the original statement seeking condemnation up to the
time of the special commissioners’ award, the proceeding is administrative in nature. Amason,



                                                 2
                                                                              Record Page 000844
682 S.W.2d at 242.       The administrative phase is completely separate from any judicial
proceeding that may later take place, and the Property Code says nothing about giving a trial
court power to oversee this initial phase. In re State, 85 S.W.3d 871, 874 (Tex. App.–Tyler
2002, orig. proceeding) (op. on reh’g.).      During the administrative phase, the trial court’s
jurisdiction is limited to appointing the commissioners, receiving their opinion as to value, and
rendering judgment based upon the commissioners’ award. In re State, 325 S.W.3d 848, 851
(Tex. App.–Austin 2010, orig. proceeding). Any judgment or order made outside of the statutory
authority is void. See, e.g., In re Energy Transfer Fuel, LP, 250 S.W.3d at 181-82 (judgment
void and mandamus available because trial court was without jurisdiction to render final
judgment containing provisions not in commissioners’ award); Gulf Energy Pipeline Co. v.
Garcia, 884 S.W.2d 821, 824 (Tex. App.–San Antonio 1994, orig. proceeding) (mandamus
appropriate where trial court abused discretion by entering void orders granting continuance of
commissioners’ hearing and resetting to later date).
       A party who is dissatisfied with the commissioners’ award may file an objection to the
commissioners’ findings in the trial court. TEX. PROP. CODE ANN. § 21.018(a) (West 2014). If
an objection is filed, the court shall cite the adverse party and try the case in the same manner as
other civil causes. Id. § 21.018(b) (West 2014). The filing of the original objection converts the
condemnation proceeding, which has been administrative thus far, into a judicial proceeding and
invests the trial court with jurisdiction of the subject matter of the proceeding. See Denton Cnty.
v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962); see also In re State, 85 S.W.3d at 874 (“A
court’s jurisdiction to act as a judicial tribunal in a condemnation proceeding is limited to that
which has been conferred by statute.”).          But without a timely filed objection to the
commissioners’ award, a condemnation proceeding never becomes a civil case and the trial court
does not gain subject matter jurisdiction. See, e.g., Brammer, 361 S.W.2d at 200; In re State, 85
S.W.3d at 874.


                                 AVAILABILITY OF MANDAMUS
       When TRWD filed its condemnation petition, the trial court had a statutory duty to
appoint three special commissioners. See TEX. PROP. CODE ANN. § 21.014(a); Peak Pipeline
Corp. v. Norton, 629 S.W.2d 185, 187 (Tex. App.–Tyler 1982, no writ) (“It is . . . the absolute
duty of the [trial court] [j]udge presiding over the matter to appoint . . . special commission[ers]



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once a petition for condemnation has been filed with him.”). Lazy W contends that a trial court
must rule on a governmental entity’s plea to the jurisdiction before taking any other action in a
case. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
However, a condemnation proceeding does not become a “case” until the commissioners have
made their award and an objection to it has been filed in the trial court. See, e.g., Brammer, 361
S.W.2d at 200; In re State, 85 S.W.3d at 874. Consequently, Lazy W’s plea to the jurisdiction,
filed during the administrative phase, was premature, and the trial court’s only course of action
was to ignore it until an objection to the commissioners’ award had been filed. See TEX. PROP.
CODE ANN. § 21.01(b); see also In re State, 325 S.W.3d at 851.
        We hold that the trial court was without jurisdiction to refuse to appoint special
commissioners in this condemnation proceeding.2 See In re ETC Katy Pipeline, Ltd., 276
S.W.3d 562, 563 (Tex. App.–Waco 2008, orig. proceeding) (op. denying reh’g) (granting
mandamus because trial court was without jurisdiction to refuse to appoint special
commissioners).        Accordingly, its October 17, 2014 order refusing to appoint special
commissioners is outside its statutory authority and therefore void. See TEX. PROP. CODE ANN.
§ 21.014(a); In re Energy Transfer Fuel, LP, 250 S.W.3d at 181. We further hold that the trial
court abused its discretion by issuing the void order. See In re Sw. Bell Telephone Co., 35
S.W.3d at 605.


                                                CONCLUSION
        Having determined that the trial court’s October 17, 2014 is void and constitutes an abuse
of discretion, we conditionally grant mandamus relief. Because the order is void, TRWD is not
required to show that appeal is an inadequate remedy. Id.
        We trust the trial court will promptly vacate its order of October 17, 2014, and issue an
order appointing three special commissioners. The writ will issue only if the trial court fails to
comply with this court’s opinion and order within ten days. The trial court shall furnish this
Court, within the time of compliance with this Court’s opinion and order, a certified copy of the
order evidencing such compliance.

        2
           To the extent that the trial court’s order can be construed as merely delaying the appointment of
commissioners, we note that appellate courts have consistently held that trial courts have no authority to grant
continuances, abate, enjoin, set, or otherwise interfere with the commissioners’ hearings. See, e.g., Garcia, 884
S.W.2d at 823; Norton, 629 S.W.2d at 187. Thus, orders purporting to hinder or delay the special commissioners in
proceeding with the condemnation hearing are void. See Garcia, 884 S.W.2d at 823.


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                                                               JAMES T. WORTHEN
                                                                  Chief Justice

Opinion delivered February 11, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)


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                                COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            ORDER
                                     FEBRUARY 11, 2015


                                      NO. 12-14-00329-CV


                    TARRANT REGIONAL WATER DISTRICT,
                A WATER CONTROL AND IMPROVEMENT DISTRICT,
                                   Relator
                                     V.
                           HON. JOE D. CLAYTON,
                                 Respondent


                               Appeal from the 3rd District Court
                      of Henderson County, Texas (Tr.Ct.No. 2014C-0144)

               ON THIS DAY came to be heard the petition for writ of mandamus filed by
TARRANT        REGIONAL         WATER       DISTRICT,       A    WATER       CONTROL         AND
IMPROVEMENT DISTRICT, who is the relator in Cause No. 2014C-0144 pending on the
docket of the 3rd Judicial District Court of Henderson County, Texas. Said petition for writ of
mandamus having been filed herein on November 10, 2014, and the same having been duly
considered, because it is the opinion of this Court that the writ of mandamus is meritorious, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby conditionally granted.
       And because it is further the opinion of this Court that the trial judge will act promptly
and vacate its order of October 17, 2014, and in its stead, issue an order appointing three special



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commissioners as required by the Texas Property Code, the writ will not issue unless the
Honorable Joe D. Clayton, sitting by assignment in the 3rd Judicial District Court, fails to
comply with this Court’s order within ten days from the date of this order.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




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