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IN THE SUPREME COURT OF TEXAS
 
════════════
No. 05-0236
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The State of Texas, Petitioner,
 
v.
 
J. Grady Brown, Jr.,
Respondent
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
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            Justice O’Neill, concurring
and dissenting.
 
            I agree fully with the Court’s
conclusion that Property Code sections 21.019 and 21.0195 do not authorize the
award of all fees and expenses under these circumstances. I dissent only
because I would remand the case, rather than render judgment, so that the trial
court may consider imposing any sanctions available under the Texas Rules of
Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing
sanctions when a pleading is groundless or not brought in good faith); Tex.
R. Civ. P. 70 (permitting a trial court to require a party whose amended
or supplemental pleading surprises and prejudices another party to pay the
additional costs and expenses incurred by the surprised party as a result of
the surprise); Tex. R.
Civ. P. 215 (providing for sanctions when a
party abuses or fails to comply with discovery proceedings and requests).
            As the Court notes, we recently held
that such sanctions against a condemning authority are available because
Property Code section 21.018(b) stipulates that condemnation trials are to be
conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472,
480 (Tex.
2008). As we noted in PR Investments, appropriate
sanctions under the Rules of Civil Procedure may not constitute the entirety of
the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available
here. Because PR Investments was decided after the trial court’s
decision, in the interests of justice and fairness, I would remand to permit
the trial court to consider sanctions under the Rules of Civil Procedure in
light of PR Investments.
 
 
                                                                        ___________________________________
                                                                        Harriet O’Neill
                                                                        Justice
 
OPINION DELIVERED: August
29, 2008

