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Whittington v. City of Austin9/30/2005
of condemnation actions differs from other civil actions, the filing of the condemnation petition and special commissioners' hearing has been described by the supreme court as an "administrative proceeding" which "converts into a normal pending cause when objections to the commissioners' award are filed." Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 179 (Tex. 2004) (internal citations and quotations omitted); see generally Tex. Prop. Code Ann. §§ 21.011-.016. Thus, upon the filing of objections to the special commissioners' award, the City had the burden of proving, in the normal manner of a judicial proceeding, the essential elements of its condemnation claim. Accordingly, on summary judgment, the City had the burden of conclusively negating the existence of a genuine issue of material fact with regard to each element. Willrich, 28 S.W.3d at 23.
Broadly speaking, the City had to prove three essential elements to prevail on its condemnation claim. First, the City had to establish that it satisfied various formal prerequisites necessary to proceed in the trial court. The prerequisites include proof that a petition was filed that complies with section 21.012(b) of the property code; an offer to purchase was made; special commissioners were duly appointed, sworn and made an award; and objections were filed. See Hubenak, 44 S.W.3d at 183-84. Although these requirements have sometimes been characterized as jurisdictional, the supreme court recently held that at least some of them are not. Hubenak, 44 S.W.3d at 180-84.
Next, the City had to prove that the condemnation was for a "public use." This requirement derives from Article I, section 17 of the Texas Constitution:
No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money . . . .
Tex. Const. art. I, § 17. This provision is not a grant of powers to the State, but a limitation on the inherent sovereign power of eminent domain by imposing the requirements that the State take property only for "public use" and pay "adequate compensation" whenever doing so. McInnis v. Brown Co. Water Improvement Dist. No. 1, 41 S.W.2d 741, 744 (Tex. App.--Austin 1931, writ ref'd). Consistent with these limitations, the State, when delegating general eminent domain power to home-rule municipalities like the City of Austin, qualified the grant of power to the "exercise the right of eminent domain for a public purpose to acquire public or private property" for various listed purposes or "any other municipal purpose the governing body considers advisable." Tex. Loc. Gov't Code Ann. § 251.001(a) (West 1999) (emphasis added). By requiring takings to be solely for public purposes, these limitations impliedly prohibit takings for private purposes or benefit. Maher v. Lasater, 354 S.W.2d 923, 924 (Tex. 1962).
There are two aspects to the "public use" requirement. First, the condemnor must intend a use for the property that constitutes a "public use" under Texas law. Second, the condemnation must actually be necessary to advance or achieve the ostensible public use. A related concept is that a mere legislative declaration that a given use is a public use or is necessary does not control if the true intended use is a private use. This second aspect of public use is commonly termed the "necessity" or "public necessity" requirement. See, e.g., Bevley v. Tenngasco Gas Gathering Co., 638 S.W.2d 118, 120 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.); see also City of Dallas v. Higginbotham, 143 S.W.2
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