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Whittington v. City of Austin9/30/2005
ted in cases such as Higginbotham and Horton. Higginbotham, 143 S.W.2d at 88-89; Horton, 468 S.W.2d at 877-78.
Under these general concepts, the City had the summary judgment burden to conclusively establish that its governing body had made "a determination . . . of the necessity for acquiring certain property." Higginbotham, 143 S.W.2d at 88. The City errs in attempting to dismiss this requirement as merely one of "procedure" that should be, but is not, addressed in chapter 21 of the property code. Proof that a condemnor's governing body made a necessity determination is what gives rise to the presumption that the taking was, in fact, necessary. Coastal Indus. Water Auth., 592 S.W.2d at 600; Higginbotham, 143 S.W.2d at 88; Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex. App.--San Antonio 1998, pet. denied); Bevley, 638 S.W.2d at 121. Absent such proof, the City cannot meet its summary judgment burden on the substantive element that the taking actually advanced its intended public use. Moreover, a number of Texas courts, including this Court, have appeared to imply proof of a necessity determination into the requirements now found in chapter 21 of the property code. Horton, 468 S.W.2d at 877-78 (former article 3264 of the revised civil statutes required proof of "a determination by the condemning authority of . . . necessity and the public purpose of the project"). Thus, if the City has failed to meet its summary judgment burden to conclusively demonstrate that the Austin City Council made a determination of necessity, we are compelled to reverse. We accordingly consider the showing required to establish "a determination . . . of the necessity for acquiring certain property." Higginbotham, 143 S.W.2d at 88. Although differing from the approach this Court has followed, we acknowledge that many Texas courts have appeared to require condemnors to demonstrate an explicit resolution from their governing body that a particular taking is "necessary" or "needed" to advance a specified public purpose. Mercier v. MidTexas Pipeline Co., 28 S.W.3d 712, 720 (Tex. App.--Corpus Christi 2000), overruled on other grounds by Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172 (Tex. 2004) (resolution of governing board stated that company "needed to build and operate the pipeline to serve a public purpose" and made findings regarding the best route); Teco Pipeline, 985 S.W.2d at 565 (proof of both unanimous consent of shareholders and unanimous consent of board of directors stating that pipeline was needed to serve a public purpose, and describing route); Saunders v. Titus County Fresh Water Supply Dist. No. 1, 847 S.W.2d 424, 425 (Tex. App.--Texarkana 1993, no writ) (express finding by water supply corporation board that taking was necessary to settle lawsuit); Anderson v. Clajon Gas Co., 677 S.W.2d 702, 704 (Tex. App.--Houston [1st Dist.] 1984, no writ) ("Normally, a resolution of the board of directors . . . is the proper method of determining and declaring public necessity."); Burch, 508 S.W.2d at 655-56 (board "has determined the necessity for taking plaintiffs' land"); see also Stirman v. City of Tyler, 443 S.W.2d 354, 357-58 (Tex. Civ. App.--Tyler 1969, writ ref'd n.r.e.) (construing two resolutions together to constitute required determination of necessity). Under such a standard, Resolution 010809-11 would clearly be deficient: it contains no determination by the Austin City Council that condemning the Whittingtons' property was necessary to advance a public use, or even what its intended public use is. Nor did the City establish through other means that the Austin City Council made an express determination of necessity. There was no evidence of orders, resolutions, or minutes that might have elaborated on th
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