
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




SUPPLEMENTAL OPINION ON MOTION FOR REHEARING





NO. 03-00-00744-CV


Texas Department of Transportation, Michael W. Behrens, Robert L. Nichols, John W.
Johnson, and Ric Williamson, Appellants

v.

City of Sunset Valley, Terrance R. Cowan, and Donald Hurwitz, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. 98-05052, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING


	We issue the following supplemental opinion in connection with our earlier opinion
issued on August 30, 2002.

	In our opinion of August 30, 2002, we affirmed the district court's judgment that the
City of Sunset Valley was entitled to adequate compensation for the Texas Department of
Transportation's (TxDOT) occupation, appropriation and destruction of a portion of Jones Road. 
The district court ruled that TxDOT violated the transportation code, the common law of trespass
and nuisance, and article I, section 17 of the Texas Constitution.  On appeal, TxDOT only contended
that Sunset Valley was not entitled to the constitutional protection because Sunset Valley is not a
"person" within the meaning of article 1, section 17.  At the city's invitation, we affirmed the district
court's judgment on the basis that it was supported by separate and independent statutory grounds
that TxDOT failed to challenge.  See San Antonio Press v. Custom Bilt Mach., 852 S.W.2d 64, 65
(Tex. App.--San Antonio 1993, no writ).
	Specifically, we relied upon section 203.058(a) of the transportation code in
upholding Sunset Valley's entitlement to compensation, which states:

If the acquisition of real property, property rights, or material by the department from
a state agency under this subchapter will deprive the agency of a thing of value to the
agency in the exercise of its functions, adequate compensation for the real property,
property rights, or material shall be made.


Tex. Transp. Code Ann. § 203.058(a) (West 1999).  However, we read the statute in its entirety and
thereby acknowledged section 203.058(e), which provides that if the parties cannot reach an
agreement on adequate compensation, "the General Land Office shall determine the fair, equitable,
and realistic compensation to be paid."  Id. § 203.058(e).  On this basis, we held that the General
Land Office ("GLO") had the authority to make the initial determination as to the amount of
compensation the city should receive for TxDOT's violation of the transportation code.  We did not
hold that the recommendation by the GLO could never stand judicial review.  On rehearing, Sunset
Valley complains that in "an unprecedented opinion" we erred by construing the transportation code
in this manner.
	In its initial briefing to this Court, Sunset Valley argued that its inverse condemnation
claim is based upon and supported by multiple alternative grounds, including that section 203.058(a)
afforded it "a statutory right and remedy of compensation."  It urged that when the State failed to
institute the statutory procedure for condemnation, Sunset Valley had a statutory right to initiate an
inverse condemnation suit to obtain compensation.  Sunset Valley argued that the legislature "can
provide more generous protections than are provided under the Constitution," and therefore urged
that the transportation code provided an independent basis for our affirming the judgment,
"irrespective of the constitutional rights asserted by Sunset Valley."  In a post submission letter brief,
Sunset Valley again relied upon section 203.058(a).  It analyzed the provision, phrase by phrase, to
demonstrate the city's statutory right to seek compensation and the statute's control of Sunset
Valley's lawsuit.  It stated: "This statute thus provides a basis for compensation independent of the
Texas Constitution."  In response, TxDOT cited section 203.058(e) and pointed out that "if Appellee
really believes § 203.058 requires TxDOT to compensate it in this case, it would be required to
submit to the General Land Office's jurisdiction, not the court's jurisdiction."  Sunset Valley did not
respond to this assertion.
	Throughout the course of this litigation, Sunset Valley has relied on the transportation
code, particularly section 203.058, as a ground for recovery on its inverse condemnation claims and
has urged this Court to base our ruling on the statute.  The district court and this Court have agreed
that TxDOT's occupation, appropriation, and destruction of Jones Road constituted a violation of
the transportation code, thus providing Sunset Valley with a statutory cause of action.  That being
so, we question why section 203.058(e) would not apply.  If section 203.058 applies, as Sunset
Valley contends, it applies in its entirety.  We therefore reject the arguments lodged by Sunset Valley
against our application of section 203.058(e), which have been raised for the first time on motion
for rehearing.
	We overrule Sunset Valley's motion for rehearing.


					______________________________________					Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Yeakel and Puryear
Motion for Rehearing Overruled
Filed:   December 5, 2002
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