The opinion
IN THE SUPREME COURT OF TEXAS
IN THE SUPREME COURT OF TEXAS
════════════
No. 05-0661
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FKM Partnership, Ltd., A Texas
Limited Partnership, Petitioner
v.
Board of Regents of the
University of
Houston System,
Respondent
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fourteenth District of
Texas
════════════════════════════════════════════════════
Argued March 21,
2007
Justice Willett , concurring in part and
dissenting in part.
I
agree with all but Part II( B)(2) of the Court = s opinion, which disregards
the language of the governing statute. The unambiguous text of Property Code
Section 21.019(b) provides no basis for awarding fees and expenses to FKM. I
understand perfectly the Court = s concern about condemnor abuse, but if the legal deck is stacked, the
Legislature should reshuffle the equities, not us.
Fee-shifting
statutes must contain express authorization, [1] particularly those effecting a waiver of sovereign immunity. [2] The Court accepts FKM = s extra-statutory argument
that the University = s
amended petition scaling back the acquisition = s size effected a partial
dismissal of the condemnation suit, thus entitling FKM to fees and expenses
under Section 21.019(b). By its very language, however, that fee-shifting
provision does not apply here.
Section
21.019 begins “[a] party that files a condemnation petition may move to dismiss
the proceedings, and the court shall conduct a hearing on the motion.” [3] Subsection (b) reads:
A
court that hears and grants a motion to dismiss a condemnation proceeding made
by a condemnor under Subsection (a) shall make an
allowance to the property owner for reasonable and necessary fees for attorneys,
appraisers, and photographers and for the other expenses incurred by the
property owner to the date of the hearing. [4]
We
must take the Legislature = s language as we find it
and not judicially rewrite the statute under the guise of construction, however
unjust or imperfect we believe the statute to be. [5] Our confined role is to interpret
unambiguous text according to its terms, reading the Legislature = s words as enacted, not
revising them as desired. [6] In departing from our oft-professed
adherence to plain language, the Court has treated the University to a classic
Inspector Clouseau moment. [7]
On its face
Section 21.019(b) requires three things, not one of which happened in this
case:
1.
a motion to dismiss filed by the condemning
authority,
2.
a hearing on the motion, and
3.
an order granting the motion.
None of these
procedural steps occurred: no motion, no hearing, no
order. I would apply the statute as written, and absent these mandatory
triggering events, a court has no authority to award fees and expenses.
Nor can
Section 21.019 be construed as encompassing a “partial dismissal” of the
proceeding. Subsection (a) covers a motion “to dismiss the proceedings,” and
Subsection (b) applies where the court grants the “motion to dismiss a
condemnation proceeding.” Similarly, Subsection (c) covers “a motion to dismiss
a condemnation proceeding” filed by the landowner. The use of the term
“condemnation proceeding” throughout the rest of Chapter 21 confirms the
Legislature means the entire case. [8] The statute speaks to total dismissal and
makes no provision for anything less.
The
Legislature could, of course, enact a fee provision that covers partial
dismissals. Several states have done so, [9] and Section 1303(b) of the Model Eminent
Domain Code authorizes fee shifting “[ i ]f the scope of
the property to be taken is reduced as the result of . . . a partial
dismissal.” [10] In that instance, the model code
provides “the court shall award the defendant the portion of his litigation
expenses attributable to the property within the scope of the reduction.” [11] The model code was adopted by the
National Conference of Commissioners on Uniform State Laws in 1984, but Texas
lawmakers, while twice substantively amending the fee-shifting provisions since
then, have declined to authorize fee shifting in partial-dismissal cases. [12]
Chapter 21 of
the Property Code is the Legislature = s comprehensive rulebook
governing the taking of private property for public use. And while I understand
the Court = s concerns
about condemnors = artful dodging of
otherwise-recoverable fees, the statute focuses on actions, not motives; it says
what it says, not what the Court says it says. Landowners recover when the court
grants a condemnor = s motion dismissing the
entire proceeding or determines the condemnor lacked
the right to acquire the property, [13] not when the condemnor amends to take less property. The Legislature has
defined the specific circumstances under which a landowner may recover fees and
expenses, and those circumstances C ”a matter of
legislative grace rather than constitutional command” [14] C are simply absent in this
case. Here, the University amended its petition to shrink the project; it did
not dismiss its petition to abandon the project.
I understand
that Part II( B)(2) of the Court = s opinion aims to work an
eminently fair result, but as it upends the balance lawmakers struck in the
controlling statute, I respectfully dissent.
______________________________
Don R.
Willett
Justice
Opinion delivered: June 6,
2008
[1] See, e.g. , Holland v. Wal-Mart Stores, Inc. , 1 S.W.3d
91, 95 (Tex.
1999).
[2] As to immunity
waivers, two things are axiomatic: (1) they must be clear and unambiguous, Tex. Gov = t Code ' 311.034; Tooke v.
City of Mexia , 197 S.W.3d 325 , 329 n.2, 333 (Tex.
2006); and (2) uncertainties over legislative consent must be resolved in favor
of retaining immunity, Wichita Falls State Hosp. v. Taylor , 106 S.W.3d
692, 697 (Tex. 2003). The Court infers waiver from Section 21.019(b), and while
I agree the statute is clear, its clarity cuts in a direction contrary to the
Court = s holding. At the very least, Section 21.019(b) is a
slender reed upon which to conclude the Legislature waived immunity beyond all
doubt.
[3] Tex. Prop. Code ' 21.019(a).
[4] ' 21.019 (b).
[5] See Simmons
v. Arnim , 220 S.W. 66, 70 (Tex.
1920).
[6] Alex Sheshunoff Mgmt. Servs ., L.P. v. Johnson , 209 S.W.3d 644, 651-52
(Tex.
2006).
[7]
Clouseau :
Does your dog bite?
Hotel Clerk: No.
Clouseau : [bowing down to
pet the dog] Nice doggie.
[ dog barks and bites Clouseau on the hand]
Clouseau : I thought you
said your dog did not bite!
Hotel Clerk: That is not my
dog.
The Pink
Panther Strikes Again (United Artists
1976), available at
http://youtube.com/watch?v=SXn2QVipK2o .
[8] The term is
used repeatedly throughout Chapter 21 in provisions related to everything from
initial filing, Tex. Prop. Code
' 21.012, to venue, ' 21.013, to the special commissioners = procedures, '' 21.042(a), .0421(a), .047, to trial to the court,
' 21.018, to the procedure governing reinstatement of
condemnation proceedings, ' 21.020, to the rules covering possession of the land
pending litigation, ' 21.021, to the procedures governing final judgments,
'' 21.061-.063. Each and every reference makes evident the
Legislature = s intended meaning.
[9] E.g. , Ala. Code ' 18-1A-232; Alaska R. Civ. P. 72( i ), (k); Cal. Civ.
Proc. Code ' 1268.610; 26
Pa. Cons. Stat. ' 308.
[10] Model Eminent Domain Code
' 1303(b)
(1984).
[11] Id .
[12] Act of June 1, 1997, 75th Leg., R.S., ch .
1171, ' 1.46, 1997
Tex. Gen. Laws 4427 , 4447 (codified at Tex. Prop. Code ' 21.0195); Act of May 30, 1987, 70th Leg., R.S.,
ch . 483, ' 1, 1987 Tex. Gen. Laws 2091 , 2091 (amending
Tex. Prop. Code '
21.019).
[13] Tex. Prop. Code '' 21.019,
.044.
[14]
United
States v. Bodcaw Co. , 440 U.S. 202, 204
(1979).