State of Texas v. Brown, No. 05-0236, 262 S.W.3d 365 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, land owner not entitled to recover fees; sanctions denied on ground that they were not
sought in the trial court)

RULING: "[W]e grant the State’s petition for review. Without hearing oral
argument, we reverse the court of appeals’ judgment and render judgment
that Brown take nothing on his claim for attorney’s fees and expenses."

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 SW3d472 (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


State of Texas v. Brown, 262 S.W.3d 365 (Tex. 2008)


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

Justice O’Neill filed an opinion concurring in part and dissenting in part.

In this case, we consider whether the Property Code authorizes a landowner to recover fees and
expenses from the State when the State amends its condemnation petition to seek property
rights different from those it sought before the special commissioners. We hold that under the
facts presented, it does not.

In December 1993, the State filed a petition seeking to condemn portions of two Denton County
tracts of land owned by Grady Brown. The condemned property was for use in constructing
improvements to Interstate Highway 35E and building a bypass for new State Highway 121.
Pursuant to the Property Code, the trial court appointed three special commissioners to assess
Brown’s damages. See Tex. Prop. Code § 21.014.[1] Both Brown and the State objected to the
commissioners’ award and sought a jury trial. Eleven days before trial the State sought leave to
file its third amended petition for condemnation. The amended petition reduced the access to
Brown’s property from what had been originally proposed. Brown objected on the basis that the
late filing would violate the trial court’s scheduling order. He also asserted that the amendment
seeking increased property rights would deprive the trial court of its appellate jurisdiction. The
trial court allowed the State to file the amended pleading.

The case was tried and appealed. Brown v. State, 984 S.W.2d 348, 349 (Tex. App.—Fort Worth
1999, pet. denied). On appeal, Brown renewed his complaints about the third amended petition.
Id. The court of appeals reversed and remanded for a new trial on the condemnation claims that
had been presented to the special commissioners. Id. at 350-51. As to Brown’s claim that the
amendment deprived the trial court of jurisdiction, the court said:

If the condemning authority amends its petition of condemnation to take more land or reduce the
rights of the condemned property owner after the action is appealed to the trial court, then that
court lacks jurisdiction to hear the case because the amendment enlarged the taking from the
proposed taking that the special commissioners considered. Id. at 350. The court also
considered the late-filing issue and concluded that “[t]he late filing of the State’s third amended
petition for condemnation operated as a surprise to Brown, and as a matter of law, prejudiced
Brown’s ability to effectively use his experts’ opinions.” Id.

The case went back to the trial court where Brown moved for assessment of attorney’s fees and
expenses pursuant to sections 21.019 and 21.0195. See Tex. Prop. Code §§ 21.019, 21.0195.
The trial court granted the motion, and the case was retried to a jury. The trial court entered
judgment on the jury verdict awarding damages to Brown and title of the property to the State.
The judgment also recited that pursuant to sections 21.019 and 21.0195, Brown was entitled to
fees and expenses in the total amount of $413,040.52.

The State appealed the award of fees and expenses. The court of appeals affirmed on the basis
of section 21.0195. 158 S.W.3d 68, 72-73. In doing so, the court quoted with approval the trial
court’s explanation for awarding fees and expenses to Brown:

Because of the language in Subparagraph C of 21.0195 I believe the landowner’s correct about
that, that the proper code construction of 21.0195 . . . is that the Court should analyze the
applicability of 21.0195 on what the effect was on the landowner rather than the procedural
posture of what actually was taken by the State, result being that at least the third amended
petition was found to have been erroneously proceeded on. And that’s bad grammar, but it was
found to have been improperly brought by the State.

Now, as a practical matter, the effect on the landowner is exactly the same as if there had been a
finding at the trial court level of an additional take resulting in a dismissal, either on motion of the
State or on motion of the landowner.
. . .

. . . [H]ere I am going to find, so that the record is complete, that the events in this case, the
history of this case, the procedural and substantive history of this case is effectively the same, as
if the proceeding were dismissed for defects in its original presentation by the condemnor such
that it triggers the policy behind the statute.
. . . .

. . . [T]he effective result was the reversal and remand of the case, which has the effect of
accomplishing--or creating the same policy situation that the legislation, I believe, was designed
to minimize, and that was the necessity to try two times a very, very expensive case because of
an error in the bringing of the case by the condemnor. Id. at 70-72.

The court of appeals, after adopting the trial court’s analysis and reasoning, noted that “[t]he
effect of this court’s decision in the first Brown case was to dismiss the State’s third amended
petition because of the State’s ‘failure . . . to bring the proceeding properly.’” Id. at 72. The State
appeals to this Court contending that Brown was not entitled to recover fees and expenses. The
trial court relied on both sections 21.019 and 21.0195 in awarding Brown attorney’s fees, but the
court of appeals discussed only section 21.0195.[2] Section 21.019(b) provides generally for the
award of fees and expenses when the court dismisses the proceedings on the condemning
authority’s motion, and section 21.0195(c) does the same for cases in which the condemning
authority is the Texas Department of Transportation (TxDOT) or when the case is dismissed
because TxDOT failed to bring the proceeding properly. The relevant portions of Property Code
Sections 21.019 and 21.0195 provide as follows:

21.019. Dismissal of Condemnation Proceedings

(b) A court that hears and grants a motion to dismiss a condemnation proceeding made by a
condemnor under Subsection (a) shall make an allowance to the property owner for reasonable
and necessary fees for attorneys, appraisers, and photographers and for the other expenses
incurred by the property owner to the date of the hearing.

21.0195. Dismissal of Certain Condemnation Proceedings; Texas Department of

(c) If a court dismisses a condemnation proceeding on the motion of the department or as a
result of the failure of the department to bring the proceeding properly, the court shall make an
allowance to the property owner for the value of the department’s use of the property while in
possession of the property, any damage that the condemnation has caused to the property
owner, and any expenses the property owner has incurred in connection with the condemnation,
including reasonable and necessary fees for attorneys.

Section 21.0195 applies “only to dismissal of a condemnation proceeding for which a motion is
made on or after the effective date [September 1, 1997] of this section.” Act of June 1, 1997,
75th Leg., R.S., ch. 1171, § 1.46(b), 1997 Tex. Gen. Laws 4427, 4447. The State contends that
section 21.0195 is inapplicable because it was not in force when the State allegedly moved for
dismissal by filing amended pleadings. Brown responds that the court of appeals effectively
dismissed the proceedings for being improperly brought when it remanded the case for a new
trial on the State’s original petition, which occurred well after the statute’s effective date.
Assuming, without deciding, that section 21.0195 applies, it does not support an award of fees
and expenses in this situation.

After the court of appeals issued its opinion in this case, we considered and decided
Investments & Specialty Retailers, Inc. v. State, 251 S.W.3d 472 (Tex. 2008). In PRI, the State,
acting through TxDOT, filed suit to condemn part of a tract of land in Houston that was owned by
PRI. Id. at 473. Commissioners were appointed, but both parties were dissatisfied with the
commissioners’ assessed damages. Id. at 474. Shortly before trial, TxDOT changed the design
of its road construction plan, thereby altering slightly the nature of the taking. Id. PRI objected and
filed a motion to dismiss, but TxDOT maintained that any trial based on the original plan would
be a sham. Id. The trial court ruled that TxDOT could only try the case based on the plan that was
presented to the commissioners, dismissed TxDOT’s suit for lack of jurisdiction, and assessed
fees and costs. Id. The court assessed fees and costs under both the Texas Rules of Civil
Procedure and section 21.0195(c) because TxDOT failed “to bring the proceeding properly.” Id.
at 475. The court of appeals reversed, and we affirmed the reversal.

In doing so, we addressed three issues of relevance to this matter. First, we noted that the plain
language of section 21.018(b) directs condemnation cases to be tried in the same manner as
other civil cases. That includes allowing amendment of pleadings. Second, we held that the trial
court was not deprived of jurisdiction when TxDOT amended its pleadings and changed
compensation issues from those presented to the commissioners:

In sum, the relevant statutes and case law do not require TxDOT to specify in its petition the
precise signs, striping, lanes, and the like that it intends to construct when it condemns property
for road construction. Nor is TxDOT prohibited from changing those design specifics after the
special commissioners’ hearing, even if the change of plans will affect the value of the property
owner’s remaining tract. Such a change of plans does not divest the trial court of jurisdiction to
proceed after the special commissioners have ruled and to “try the case in the same manner as
other civil causes.” In these circumstances the statutory scheme does not require TxDOT to start
over with a new petition, a new hearing before the special commissioners, and payment to
Petitioners of all the fees and expenses they incurred in the first administrative proceeding.
Id. at 478-79 (quoting Tex. Prop. Code § 21.018(b)). Third, we held that TxDOT did not fail “to
bring the proceeding properly;” it met the requirements of section 21.012 for bringing the
condemnation suit and the trial court had jurisdiction. Id. at 479. Accordingly, fees and expenses
were not properly awarded under the statute. Id. We remanded the case for reconsideration of
sanctions available under the Texas Rules of Civil Procedure. Id. at 480.

The trial court in this case specifically found that no motion to dismiss had been filed and no
order of dismissal had been entered. As a basis for awarding fees and expenses to Brown,
however, it reasoned that the State’s amendment of its planned use for the condemned property
had the practical effect of dismissal because it resulted in the case having to be retried with the
attendant increased expenses to Brown. 158 S.W.3d at 72.

Section 21.0195 does not admit of such an interpretation. Although TxDOT filed its third
amended petition late, and the court of appeals held that it surprised and prejudiced Brown, the
late amendment was no more than a procedural trial error; it neither dismissed the proceeding
nor deprived the trial court of jurisdiction so that recovery of all fees and expenses under section
21.019 or 21.0195 became available. Section 21.0195 is entitled “Dismissal of Certain
Condemnation Proceedings; Texas Department of Transportation.” Subsection 21.0195(a)
provides that “[t]his section applies only to the dismissal of a condemnation proceeding”
involving the Texas Department of Transportation. Such language must be considered in reading
subsection 21.0195(c). See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.
2003) (noting that we “read the statute as a whole and interpret it to give effect to every part.”).
And, it is appropriate for us to consider the title of the section in construing it. Tex. Gov’t Code §
311.023. Legislative intent is clear from the context of the caption of the section, the language of
subsection 21.0195(a) and the first phrase of subsection 21.0195(c): fees, expenses and
damages can be awarded under subsection 21.0195(c) only if the condemnation proceeding is
dismissed. In this case, the proceeding was not dismissed.

We recently interpreted section 21.019 to require condemnation proceedings to be dismissed
before fees and expenses could be awarded but held that there was such an overwhelming
change in the compensation facts that a functional dismissal of the original condemnation suit
had occurred. See
FKM P’ship v. Bd. of Regents of the Univ. of Houston, 255 S.W.3d 619 (Tex.
2008). In FKM, the condemnor amended its pleadings during the pendency of the condemnation
suit to reduce the property it originally sought to condemn by over ninety-seven percent. Id. at
625. The landowner was allowed to recover fees and expenses as provided for by section
21.019(b) despite the lack of an actual dismissal. Id. at 634-35.

The operative facts in this case are strikingly similar to those in PRI, but not those in FKM. Here
TxDOT amended its pleadings to seek the same land it sought to condemn in its presentation to
the special commissioners, albeit with a different configuration. The amended pleadings did not
effect either an actual dismissal of its condemnation proceedings or the functional equivalent of
a dismissal. Because the plain language of section 21.019 requires a condemnation proceeding
to be dismissed before fees and expenses may be recovered from the condemning authority,
Brown is not entitled to recover fees and expenses.

Referencing PRI, the dissent would remand for the trial court to consider whether “appropriate
sanctions” are warranted against the State because of its late-filed amended petition. In PRI, the
landowner sought sanctions against TxDOT in the trial court and the trial court awarded PRI fees
and expenses both pursuant to section 21.0195(c) and as sanctions under Texas Rules of Civil
Procedure 13 and 215. 251 S.W.3d at 475.

Brown did not seek fees and expenses as sanctions in the trial court, nor did the trial court award
them as sanctions. Furthermore, Brown does not seek a remand for the trial court to consider
sanctions. A party generally is not entitled to relief it does not seek. See Stevens v. Nat’l Educ.
Ctrs., Inc., 11 S.W.3d 185, 186 (Tex. 2000); Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498,
499 (Tex. 1993) (noting that only the relief requested by a party is the relief to which it is entitled).
We do not believe it proper to sua sponte grant relief Brown has not sought.

For the foregoing reasons we grant the State’s petition for review. Without hearing oral
argument, we reverse the court of appeals’ judgment and render judgment that Brown take
nothing on his claim for attorney’s fees and expenses.


                                                          Phil Johnson


OPINION DELIVERED: August 29, 2008


[1] Further references to sections of the Property Code will be by reference to section number.

[2] While the court of appeals did not address section 21.019, the parties do. Because of our disposition
as to section 21.0195, we address the applicability of section 21.019 rather than remanding to the court
of appeals for further consideration. See Tex. R. App. P. 60.2(c).