“COME AND TAKE IT” was the defiant response of Texas revolutionaries in 1835 in Gonzales (the site of the first battle of the Texas Revolution) to the Mexican government’s demand they return a bronze cannon Texans had received four years earlier from Mexican officials. The Mexican military failed in its attempt to forcefully take back the cannon from the Texans.
If you respond “COME AND TAKE IT” to a demand for your land and/or buildings for a public use from a governmental entity or a common carrier pipeline company for transport of oil, gas and other materials that can flow through a pipeline, they will take it, and not even Texas revolutionaries can protect you.
The condemnation (or “eminent domain” if you want to sound intelligent) process in Texas can be complicated. The process starts when the condemnor makes the required bona fide purchase offer to the property owner and discloses any appraisals of the property prepared in the 10 years prior to the date of the purchase offer.
If the owner does not accept the condemnor’s purchase offer and agreement on another price is not reached, the condemnor files a condemnation suit against the owner in the county where the property is located.
After the suit is filed, the first of the two-phase condemnation process is the special commissioners’ hearing. Three commissioners are appointed by the court to hear from appraisers and arguments relating to the value of the property. The special commissioners only determine the award to compensate the owner for the taking, any damage to the owner’s remaining property and any relocation expenses, and do not consider legal issues. It is important for the owner to hire an appraiser experienced in condemnations to appraise the property, determine any remainder damages and testify at the special commissioners’ hearing.
If no objections to the award are filed on or before the first Monday following the 20th day after the award has been filed, the court will make the award the judgment of the court.
After the special commissioners’ award has been filed with the court, the condemnor may obtain possession of the property pending further litigation if the condemnor complies with certain requirements, including, inter alia (legalese for “among other things”), depositing the amount of the award with the court.
The second phase of the condemnation process begins when any party dissatisfied with the special commissioners’ award files written objections with the court on or before the first Monday following the 20th day after the award is filed.
This filing converts the condemnation proceeding from the first-phase administrative proceeding to the second-phase civil action subject to jury or non-jury trial de novo (Latinese for “starting from the beginning”), like any other lawsuit. The special commissioners’ award is nullified and is not admissible in evidence on the issue of damages. Just like in the special commissioners’ hearing, it is extremely important for the property owner to retain an appraiser experienced in condemnations to testify at the trial.
So, to sum up, they can TAKE IT, but they will have to pay for it. (And you thought this article was going to be about protecting cannons and gun rights.)
Gary Moates, a shareholder, heads up the real estate section at Decker Jones, an occasional contributor to Fort Worth Inc.