The Common Law

I own property along I-35 in Central Austin. Texas Dept. of Transportation is widening I-35 and will take most of my property. What happens if the offer is low and I reject it?

After years of debate about its scope and design, TxDOT is moving forward to widen Interstate 35 (I-35) in a planned project called I-35 Capital Express Central. TxDOT will widen I-35 for approximately 8 miles through Central Austin from U.S. 290 East to SH 71/Ben White.

Many of the takings will be total in nature (i.e., TxDOT takes the entire tract of land). TxDOT estimates the project will result in 107 total displacements, including 69 businesses and 26 residences. Other takings will be partial, which means TxDOT will take some, but not all, of the property. Partial takings often damage the value of the remaining land not taken.

Texas law requires that TxDOT make an initial and final offer as part of the condemnation process. Property owners are justifiably frustrated when they receive low offers for the forced sale of private land. It's important for property owners that reject the government's low initial and final offers to understand what happens next in a Texas eminent domain case.

If the property owner rejects the low offers, TxDOT will exercise the power of eminent domain by filing a condemnation lawsuit against the landowner to take the property. Filing the lawsuit starts the administrative phase of the case. TxDOT will conduct a special commissioners' hearing, which is presided over by three court-appointed commissioners (check out previous "Common Law" columns for more details on the special commissioners' hearing process). At the end of the hearing, the special commissioners will issue a special commissioners' award, which sets out the commissioners' determination of the just compensation owed to the property owner.

If either party is unhappy with the special commissioners' award (which is common), the property owner or TxDOT can file timely objections to the award (consult with a lawyer to determine case-specific deadlines). In doing so, the condemnation lawsuit will be "appealed" to the trial court and the case will move forward in a manner similar to other civil lawsuits.

Eminent domain is its own unique area of the law, with both procedural and substantive nuances. Property owners only get one opportunity to recover for the taking. Property owners facing the prospect of losing property to TxDOT for the I-35 project should talk to experienced eminent domain lawyers to learn more about their constitutional rights.