Justice O'Neill's Separate Opinion in State of Texas v. Brown, No. 05-0236 (Tex. Aug.
29, 2008)(Johnson)(land owner not entitled to recover fees in condemnation case)

"I would remand to permit the trial court to consider sanctions under the
Rules of Civil Procedure in light of PR Investments."

THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright,
Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.  
O'Neill delivered an opinion concurring in part and dissenting in part.

LINKS: Related supreme court cases:
FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661, 255 S.W.3d 619  (Tex.
Jun 6, 2008) (
Phil Johnson) (condemnation, reduction of amount of land to be taken, partial nonsuit by
amendment of pleadings, amendment deleting claim as motion to dismiss,
attorneys fees and costs for
property owner, statutory construction)
PR Investments v. Texas, No. 04-0431, 251 S.W.3d 472 (Tex. Feb. 15, 2008)(Justice Willett)
(condemnation, change in plans for condemned property, jurisdiction of trial court, sanctions)
Texas Supreme Court Condemnation Cases | Houston Eminent Domain / Condemnation Cases


Separate Opinion by O'Neill in State of Texas v. Brown (Tex. 2008)


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


OPINION DELIVERED: August 29, 2008