My Property Is Being Taken by Eminent Domain. Should I Attend the Special Commissioners’ Hearing? (Part 1)
Eminent domain is the power of the government to take property for public use. The government is not the only one with this awesome power. The legislative branch of government—Congress at the federal level, and state legislatures at the state level—can give this power to other entities like utilities and pipeline companies.
This blog post focuses on a particular process called the “special commissioners’ hearing,” which is part of the Texas condemnation process.
What’s a special commissioner’s hearing?
Before filing a lawsuit to take property, the taker—whether it be the State of Texas, a city, a county, a school district, a pipeline company, or a powerline company—must make two written offers to the landowners whose land it wants to take.
Most landowners should reject these offers, which tend to undercompensate the landowners for the property rights being taken.
If the landowner does not accept those offers, the taker can file its lawsuit to take the property.
Once the condemnation lawsuit is filed, the judge appoints three “special commissioners” and two alternates. The only requirements for commissioners are that they be unbiased adults who own land in the same county where the land being taken is located. Each side is allowed to strike one commissioner. When a strike happens, one of the alternates takes his or her place.
The commissioners’ job is to decide how much money to award the landowner for the property rights being taken. The special commissioners' hearing is not a judicial process. The commissioners aren’t court judges. They don’t necessarily have any special expertise in real-estate valuation or legal issues. And their decision can be appealed by either side, sending the condemnation case to court as if the special commissioners’ hearing had never happened.
Why did the Texas Legislature set up this system? First, it wanted to give the condemnor and the landowner an opportunity to have an unbiased group of people decide the issue of compensation, in hopes that this administrative process would help parties settle their case and reduce the number of takings cases in the court system. Second, the Legislature wanted to create a “quick-take” process. This means that the taker pays an estimated amount of just compensation for the taking (decided by someone other than the taker) and, upon paying this amount, can take immediate possession of the property to begin building its project.
What happens–and what doesn’t happen–at the special commissioners’ hearing?
The hearing is usually a one-day affair. From a lawyer’s perspective, the hearing is the Wild, Wild West. There are no rules of evidence and no real judges, and sometimes no commissioners with any experience in land valuation. It’s usually just a couple of lawyers and maybe a handful of witnesses arguing about how much compensation is fair. Sometimes the hearing happens in a courthouse, sometimes in a Holiday Inn Express.
But there’s something important that doesn’t happen at the special commissioners’ hearing: the commissioners cannot decide whether the taker actually has the right to take the property. They cannot question whether there’s a true public necessity for the taking or whether the taking is for a public use. They only decide how much compensation the taker should pay. It’s all about the money.
At the end of the day, the commissioners write that number on a piece of paper. This is the special commissioners’ award. Once the taker pays this amount into the court’s registry, it can take immediate possession of the landowners’ property.
The landowner is entitled to take the money and can still object to the amount of the award and seek more compensation in court. But if the landowner withdraws a single penny of the commissioners’ award, he or she loses the ability to challenge whether the taker had the “right to take” the property in the first place. If this happens, the only issue left for trial is the proper amount of compensation.