If acquisition by eminent domain (ED) becomes necessary, condemnation proceedings must be started by the acquiring agency. Chapter 21 of the Texas Property Code sets forth certain requirements relating to offers made by condemning authorities. These requirements must be met in order to ensure that the Texas Department of Transportation (TxDOT) has the authority to proceed to condemnation.
Courts have strictly construed any procedural failure or ambiguity against the condemning authority and in favor of the property owner. Failure to strictly comply with all statutory procedural requirements for negotiations and eminent domain may result in an abatement or even dismissal of the condemnation proceeding.
Section 21.0111 of the Property Code requires that TxDOT disclose to the landowner, by certified mail return receipt requested (CMRRR) at the time an initial offer is made, all appraisals produced or acquired by TxDOT relating to the owner's property and prepared within 10 years preceding the offer. For that reason, send the appraisal(s) and initial offer letter to the landowner by CMRRR. Section 21.0113 also requires that the initial offer include a copy of the proposed deed, easement or other conveyance instrument for the property or property interest sought to be acquired, including the property description and any applicable special clauses (e.g., easement preamble, bisection clauses or access addenda). This section also requires specific formatting for the text in the initial offer letter. Always use the most up to date, applicable initial offer letter form. The landowner is entitled to at least 30 days to review the initial offer after its delivery before TxDOT can send a final offer. See 43 TAC 21.10(h) establishing a presumed date of delivery (5 days after mailing) when no evidence is available that the initial offer was delivered to the owner or the date of its delivery.
The Landowner's Bill of Rights, as described in and required by Section 21.0112 of the Property Code, should be included with the initial offer letter. A copy of the most current Landowner's Bill of Rights can be obtained from the Texas Attorney General website or the TxDOT website. It is available in both English and Spanish.
After (1) the landowner has had at least 30 days to review the initial offer and it is determined that the property interest needed cannot be acquired through negotiation (including administrative settlement), or (2) if there are title problems or environmental concerns that cannot be resolved, send to the owner, by regular U.S. mail and CMRRR, form ROW-N-FOL Final Offer Letter or other form of final offer appropriate to the specific to the nature of the acquisition, such as form ROW-N-FOLE Final Offer Letter (Easement).
In the caption of the final offer letter, describe the property being acquired in such a way that it can easily be identified by the owner.
Pursuant to Section 21.0113 of the Property Code, the final offer must be at least equal to the amount of the written appraisal obtained and approved by TxDOT. An additional copy of the appraisal, upon which the final offer letter is based, should be included with the final offer.
The final offer letter should clearly state that the offer is conditioned upon the owner conveying clear title to the State. Section 21.0113 also requires that the final offer include a copy of the proposed deed, easement or other conveyance instrument for the property or property interest sought to be acquired, including any applicable special clauses (e.g., easement preamble, bisection clauses or access addenda). If the property owner is an individual (and not a corporate entity), the final offer letter should include the spouse, even if not identified on the title commitment since Texas law favors community property.
The final offer letter establishes a definite date when the offer expires. Section 21.0113 (b)(7) requires that the landowner is given at least 14 days to respond to the final offer letter before eminent domain proceedings can be filed. The letter is signed by the Right of Way (ROW) manager/supervisor or designated representative. A copy of both the initial and final offer letters and proof of delivery must be provided with the submission of form ROW-E-49 Request for ED Proceedings.
Do not deviate from the appropriate final offer letter except under special conditions such as unusual splits in ownership, ownership of unproven interests, and multiple ownership. To aid in preparing these letters, the following instructions and examples are guidelines to help eliminate possible misinterpretation of TxDOT's position by property owners.
To satisfy the requirement of making a written offer when the record owner (owners or their heirs) are unknown or cannot be located after due diligence, address the initial offer letter to the record owner at the record owner's last known address, as shown by local tax rolls. Also send a copy of this letter to the address of the subject property, if the address is different from the last known address. In the letter, state that it is the last known means of trying to locate the record owner, or the owner's heirs, and describe the efforts made to find the owner. Such letters should have the notation under TxDOT's return address: “Forwarding and Address Correction Requested.”
Suggested sources for locating people include:
Follow the procedure described above when a person without legal claim to a property interest (a "squatter," a mere possessor, or an unperfected adverse possessor) is occupying or using the premises. However, when the ED proceedings are filed, make this person without legal claim a party to the proceedings as an adverse possessor even if the owners are found.
See Chapter 3, Instructions for Completing ROW-E-49, and Bankruptcy Checklist in the Eminent Domain Guide for detailed information on handling this situation.
Title for all property interests must be searched before making the initial offer. After the need for ED proceedings is determined, update the search for title information affecting the property interest.
If title insurance is involved, and upon the submission of form ROW-E-49 Request for ED Proceedings to the appropriate ROW attorney for review, notify the title company (1) that the property interest will be acquired by ED and (2) that an updated title report is requested. The title company must provide TxDOT with an updated industry-standard title commitment.
Form ROW-E-SubCheck Eminent Domain Package Submission Checklist and updated title information must be included in the submission of the form ROW-E-49 Request for ED Proceedings. The issue date of the commitment must be within 90 days of the date that the ROW attorney receives the submission.