









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-01-00012-CV

______________________________



MIDTEXAS PIPELINE COMPANY, Appellant


V.


WALTER ROY WRIGHT, III, Appellee





On Appeal from the 25th Judicial District Court

Colorado County, Texas

Trial Court No. 18,398







Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Justice Grant

Dissenting Opinion by Chief Justice Cornelius

O P I N I O N


	MidTexas Pipeline Company appeals the summary judgment granted in favor of Walter Roy
Wright, III.  MidTexas is a gas corporation with the right of condemnation under Tex. Util. Code
Ann. § 181.004 (Vernon 1998).  MidTexas began negotiations with Wright to purchase an easement
over his land for the purpose of building a natural gas pipeline.
	After negotiations yielded no agreement, MidTexas filed a condemnation action pursuant to
Tex. Prop. Code Ann. § 21.012 (Vernon 1984).  The trial court appointed special commissioners
to assess damages.  See Tex. Prop. Code Ann. § 21.014(a) (Vernon 1984).  The commissioners
heard evidence and awarded damages, but Wright objected to the award.  See Tex. Prop. Code
Ann. § 21.018(a) (Vernon 1984).  Wright filed a counterclaim in which he requested the trial court
to restore to him possession of the easement, award him damages for the unlawful taking of his
property, and award him reasonable attorney's fees. 
	Wright filed a motion for partial summary judgment in which he contended the trial court did
not have jurisdiction because MidTexas failed to comply with the jurisdictional prerequisites for
filing a condemnation action.  Specifically, Wright alleged MidTexas did not negotiate in good faith
because its offer required him to grant MidTexas rights it could not obtain through condemnation. 
Wright also filed a plea to the jurisdiction that mirrored his arguments in his motion for partial
summary judgment. 
	MidTexas filed a motion for partial summary judgment, in which it contended it met all the
jurisdictional prerequisites to filing its condemnation action.  With respect to Wright's allegation that
it failed to negotiate in good faith, MidTexas contended the good faith requirement was satisfied
when it made a bona fide offer it believed was the amount of compensation owed. 
	The trial court granted MidTexas's motion for partial summary judgment and denied Wright's
motion.  Some time later, however, the First Court of Appeals issued its opinion in Hubenak v.
San Jacinto Gas Transmission Co., Nos. 01-99-00691-CV, 01-99-00959-CV, 01-99-01359-CV,
01-99-01360-CV, 2000 WL 1056416 (Tex. App.-Houston [1st Dist.] July 27, 2000, no pet. h.) (not
yet released for publication), which involved similar issues and arguments to those in the present
case.
	Wright reurged his plea to the jurisdiction, requesting the trial court to dismiss the suit, based
on Hubenak.  The trial court granted Wright's plea to the jurisdiction, dismissing MidTexas's
condemnation action.  The trial court then severed Wright's counterclaim, making its dismissal order
a final, appealable order. 
	"The Texas land condemnation scheme is a two-part procedure involving first, an
administrative proceeding, and then if necessary, a judicial proceeding."  Amason v. Natural Gas
Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984).  When a governmental entity, or an entity with
eminent domain authority, seeks to acquire real property for public use, but is unable to agree with
the owner on the amount of damages, the entity may begin a condemnation proceeding by filing a
petition in the proper court.  Tex. Prop. Code Ann. § 21.012(a); Amason, 682 S.W.2d at 241.  Such
a petition must (1) describe the property to be condemned, (2) state the purpose for which the entity
intends to use the property, (3) state the name of the owner, if known, and (4) state that the entity and
the landowner are unable to agree on damages.  Tex. Prop. Code Ann. § 21.012(b).
	When a party files such a petition, the trial court must appoint three special commissioners
who assess the damages and file an award reflecting their opinions of the land's value.  Tex. Prop.
Code Ann. § 21.014(a); Amason, 682 S.W.2d at 241-42.  If the condemnee is unsatisfied with the
award, he or she may file an objection in the trial court.  Tex. Prop. Code Ann. § 21.018(a);
Amason, 682 S.W.2d at 242.  The filing of an objection vacates the commissioners' award and,
coupled with service of citation on the condemnor, forecloses reinstatement of the commissioners'
award.  Amason, 682 S.W.2d at 242.  What had been an administrative proceeding converts into a
cause of action with the condemnor as plaintiff and the condemnee as defendant.  Id.
	In its plea to the jurisdiction, Wright alleged MidTexas failed to meet the unable-to-agree
requirement of Section 21.012(b).  The attempt to agree is a jurisdictional prerequisite to the
statutory proceedings.  State v. Schmidt, 894 S.W.2d 543, 545 n.1 (Tex. App.-Austin 1995, no writ)
(citing Brinton v. Houston Lighting & Power Co., 175 S.W.2d 707, 709-10 (Tex. Civ.
App.-Galveston 1943, writ ref'd w.o.m.)).  The condemnor has the burden of proof on the unable-to-agree issue.  Id. at 544.
	On appeal, MidTexas contends it met the unable-to-agree requirement as a matter of law. 
We have this day released our opinion in No. 06-01-00010-CV, MidTexas Pipeline Co. v. Dernehl. 
Because the briefs and arguments are in all relevant respects the same as those raised in this appeal,
for the reasons stated in that opinion, we affirm the trial court's judgment.



						Ben Z. Grant
						Justice



DISSENTING OPINION

	I dissent for the reasons set out in my dissenting opinion in cause number 06-01-00010-CV,
MidTexas Pipeline Co. v. Dernehl.


						William J. Cornelius
						Chief Justice


Date Submitted:	August 28, 2001
Date Decided:		December 21, 2001

Do Not Publish
