TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

SUPPLEMENTAL OPINION ON MOTION FOR REHEARING

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NO. 03-00-00744-CV

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Texas Department of Transportation, Michael W. Behrens, Robert L. Nichols, John W. Johnson, and Ric Williamson, Appellants

v.

City of Sunset Valley, Terrance R. Cowan, and Donald Hurwitz, Appellees

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT

NO. 98-05052, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

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We issue the following supplemental opinion in connection with our earlier opinion issued on August 30, 2002.

In our opinion of August 30, 2002, we affirmed the district court's judgment that the City of Sunset Valley was entitled to adequate compensation for the Texas Department of Transportation's (TxDOT) occupation, appropriation and destruction of a portion of Jones Road. The district court ruled that TxDOT violated the transportation code, the common law of trespass and nuisance, and article I, section 17 of the Texas Constitution. On appeal, TxDOT only contended that Sunset Valley was not entitled to the constitutional protection because Sunset Valley is not a "person" within the meaning of article 1, section 17. At the city's invitation, we affirmed the district court's judgment on the basis that it was supported by separate and independent statutory grounds that TxDOT failed to challenge. See San Antonio Press v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.--San Antonio 1993, no writ).

Specifically, we relied upon section 203.058(a) of the transportation code in upholding Sunset Valley's entitlement to compensation, which states:

If the acquisition of real property, property rights, or material by the department from a state agency under this subchapter will deprive the agency of a thing of value to the agency in the exercise of its functions, adequate compensation for the real property, property rights, or material shall be made.

Tex. Transp. Code Ann. § 203.058(a) (West 1999). However, we read the statute in its entirety and thereby acknowledged section 203.058(e), which provides that if the parties cannot reach an agreement on adequate compensation, "the General Land Office shall determine the fair, equitable, and realistic compensation to be paid." Id. § 203.058(e). On this basis, we held that the General Land Office ("GLO") had the authority to make the initial determination as to the amount of compensation the city should receive for TxDOT's violation of the transportation code. We did not hold that the recommendation by the GLO could never stand judicial review. On rehearing, Sunset Valley complains that in "an unprecedented opinion" we erred by construing the transportation code in this manner.

In its initial briefing to this Court, Sunset Valley argued that its inverse condemnation claim is based upon and supported by multiple alternative grounds, including that section 203.058(a) afforded it "a statutory right and remedy of compensation." It urged that when the State failed to institute the statutory procedure for condemnation, Sunset Valley had a statutory right to initiate an inverse condemnation suit to obtain compensation. Sunset Valley argued that the legislature "can provide more generous protections than are provided under the Constitution," and therefore urged that the transportation code provided an independent basis for our affirming the judgment, "irrespective of the constitutional rights asserted by Sunset Valley." In a post submission letter brief, Sunset Valley again relied upon section 203.058(a). It analyzed the provision, phrase by phrase, to demonstrate the city's statutory right to seek compensation and the statute's control of Sunset Valley's lawsuit. It stated: "This statute thus provides a basis for compensation independent of the Texas Constitution." In response, TxDOT cited section 203.058(e) and pointed out that "if Appellee really believes § 203.058 requires TxDOT to compensate it in this case, it would be required to submit to the General Land Office's jurisdiction, not the court's jurisdiction." Sunset Valley did not respond to this assertion.

Throughout the course of this litigation, Sunset Valley has relied on the transportation code, particularly section 203.058, as a ground for recovery on its inverse condemnation claims and has urged this Court to base our ruling on the statute. The district court and this Court have agreed that TxDOT's occupation, appropriation, and destruction of Jones Road constituted a violation of the transportation code, thus providing Sunset Valley with a statutory cause of action. That being so, we question why section 203.058(e) would not apply. If section 203.058 applies, as Sunset Valley contends, it applies in its entirety. We therefore reject the arguments lodged by Sunset Valley against our application of section 203.058(e), which have been raised for the first time on motion for rehearing.

We overrule Sunset Valley's motion for rehearing.

______________________________________ Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Yeakel and Puryear

Motion for Rehearing Overruled

Filed: December 5, 2002

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