Houston COA holds injunction to prevent condemnation surveys not ripe

Texas Municipal Power Agency v Johnston, NO. 01-12-00873-CV, (Tex. Civ. App. Houston [1st Dist], February 28, 2013).

This is an injunction case by a property owner trying to stop a threatened condemnation process. TMPA filed a plea to the jurisdiction which was denied.  The Court of Appeals essentially determined that due to the amendments to local government’s eminent domain powers in 2011, such an action is not ripe for consideration until the entity authorizes and initiates a condemnation suit. Reversed and rendered.

TMPA, a local governmental entity, has property next to Johnson.  It sent him a copy of the Landowners’ Bill of Rights and an initial offer to purchase and an appraisal of the relevant portion of Johnston’s property it desired.  Johnson argued that delivering a condemnation appraisal, initial offer, and a copy of the Landowners’ Bill of Rights, TMPA had “invoked the condemnation procedures” of Texas Property Code Chapter 21.  TMPA asserted it had not made a determination of whether it would initiate eminent domain proceedings and submitted evidence no vote or determination had occurred.

Johnston cites the Tyler Court of Appeals’ decision in Laird Hill Salt Water Disposal, Ltd. v. East Texas Salt Water Disposal, Inc., for the proposition that “[i]t is not necessary for a governing board of a condemnor to have authorized the condemnation prior to the condemnation petition having been filed.” 351 S.W.3d 81, 89 (Tex. App.—Tyler 2011, pet. denied). The Houston Court of appeals, however, notes that Liard Hill predates Government Code §2206.053(a), which became effective on September 1, 2011, and which requires a governmental entity to “authorize the initiation of the condemnation proceeding at a public meeting by a record vote” before filing a petition under Property Code Chapter 21 to initiate such a proceeding.  The facts TMPA expressed a desire to purchase, intended to utilize eminent domain, or began the prerequisite requirements to such proceedings are not relevant.  “[U]ntil the Board authorizes the condemnation of Johnston’s property and TMPA actually files a condemnation proceeding, Johnston has not suffered a concrete injury.”  Texas Municipal Power Agency  at *15.  His claims are therefore not ripe and no jurisdiction exists for any injunctive suit.

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