Texas Condemnation:

Problems and Solutions From the

Property Owners Perspective
Luke Ellis
JOHNS MARRS ELLIS & HODGE LLP
January 8, 2015

Texas Condemnation
Context & Background
Huge Population
Growth
Significant
Infrastructure
Growth

Texas Condemnation
Common Projects
New Roads
Expanded Roads
High Voltage
Electric Powerlines
Oil/Gas Pipelines
Other

Texas Condemnation
The Balance Between
Community and Individual

Community
Benefit

Individual
Property
Owners Lose
Rights

Does the Balance of These Rights Place

Property Owners at an Unfair Disadvantage?

Texas Condemnation
Problem Attorneys Fees
Goal = Just Compensation
Make Property Owner Whole
Legal Fees & Expenses?
Texas law prohibits recovery of
attorneys fees and expenses in
typical condemnation cases

Texas Condemnation
Problem: Recovery of Market Damages

Texas Condemnation
Problem: Recovery of Market Damages

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Problem No Attorneys Fees/Expenses

Propertys FMV is $1,000,000

State Offers $500,000
Attorneys Fees and case expenses
of approximately $150,000
Property Owner contests
ultimately is awarded $1,000,000

Did Property Owner really win?

Attorneys Fees
Strict Mandatory Approach

Montana
Condemning entities pay legal
fees if landowner prevails

Attorneys Fees
Discretionary Approach

California
Judges may award legal fees if

the condemning authorities offer

is unreasonable

Attorneys Fees
Threshold Percentages

Oklahoma (10%)

Wisconsin (15%)

Colorado (30%)

Attorneys Fees
Tiered Approach

Florida
Example:
$1,000,000 offer
$3,000,000 final recovery

Attorneys Fees
Tiered Approach

Florida
Additional Recovery = $2,000,000
$250K x 33% = $82,500
$750K x 25% = $187,500
$1M x 20% = $200,000
Fees = $470,000

Texas Condemnation
Problems
Oil & Gas Industry and
Eminent Domain
Problem: No routing oversight
Solution: Institute routing process
that allows for landowner input

Texas Condemnation
Problems
Oil & Gas Industry and
Eminent Domain
Problem: No requirement for
appellate security for jury award
Solution: Require appellate security
and avoid separate collection
lawsuit to secure just compensation

Texas Condemnation
Problem Zoning Regulations
Regulatory Taking
Zoning
Loss of most productive use

Texas Condemnation
Problems
Texas law prohibits recovery for
damages the market would
recognize
Loss of visibility from highway
Access damages
Circuity of travel

Contact Information
Luke J. Ellis
lellis@jmehlaw.co
m
JOHNS MARRS ELLIS &
HODGE LLP
(512) 215-4078