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Whittington v. City of Austin9/30/2005
e proceedings underlying Resolution 010809-11. Horton, 468 S.W.2d at 878.
However, we will follow our own precedents permitting condemnors to establish that they made a necessity determination through evidence of other "affirmative acts." See Maberry, 493 S.W.2d at 270-71; Horton, 468 S.W.2d at 877-78; see also Board of Regents of the Univ. of Houston Sys. v. FKM P'ship, Ltd., No. 14-03-00392-CV, 2005 Tex. App. LEXIS 2865, at *19-20 (Tex. App.--Houston [14th Dist.] April 14, 2005, no pet. h.); Bevley, 638 S.W.2d at 121-22. Applying them, we conclude that the City has still failed to meet its summary judgment burden to conclusively demonstrate affirmative acts manifesting a necessity determination by the Austin City Council. In suggesting otherwise, the City misconstrues the nature of the proof required under this line of cases. As proof of "affirmative acts," the City relies on its condemnation petition and other instruments it filed in the proceedings. As previously stated, pleadings are not competent summary judgment evidence. Laidlaw Waste Sys., 904 S.W.2d at 660. In any event, the "affirmative acts" requirement is not satisfied by mere evidence that the City's agents went forward with condemning the Whittingtons' property. Rather, the "affirmative acts" must manifest a determination by the City's governing body that the taking was necessary to advance its intended public use. Compare Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682, 685-86 (Tex. Civ. App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.) (electric utility's board of directors approved by resolution budget for condemning right-of-ways for transmission lines based on studies showing route; budget further stated that acquisitions were "required" and "advisable"); Bolin v. Brazoria County, 381 S.W.2d 206, 209 (Tex. Civ. App.--Houston [1st Dist.] 1964, no writ) (proof that Highway Commission members issued order directing State Engineer to prepare engineering surveys and right-of-way deeds for proposed highway construction and that Commission subsequently contracted to build the road supported conclusion that Commission made required determination of necessity and suitability); Boucher v. Texas Turnpike Auth., 317 S.W.2d 594, 601-02 (Tex. Civ. App.--Texarkana 1958, no writ) (evidence that board of directors of Texas Turnpike Authority issued resolutions stating approval of survey and appraisal of tracts required and that board directed agency personnel to acquire the tracts by purchase or condemnation met requirements); with Bevley, 638 S.W.2d at 121-22; Maberry, 493 S.W.2d at 271 (no proof that "the governing body, the board of directors, or other authority having power to speak and act for the condemnor" had made determination of necessity); Horton, 468 S.W.2d at 877-78 (while recognizing that " roof of such necessity and the public purpose of the project may be made by introducing additional proceedings such as orders, resolutions, and minutes of the county commissioners declaring the public convenience and necessity for the improvement," finding no such evidence). As the Texas Supreme Court held in Burch, a city governing body cannot delegate its eminent domain power to subordinate agencies and employees: "the city council is the authority to exercise the power of eminent domain and must itself officially express the intention and necessity to condemn." 518 S.W.2d at 545; see also Bevley, 638 S.W.2d at 121-22 (proof of surveys, landowner negotiations and other right-of-way work was not proof that board of pipeline company had determined the necessity of condemning property for pipeline, in absence of showing that such work had been authorized by the board or could only be performed with such authorization).
We do not perceiv
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