State v. Lee
| Decision Date | 04 May 1961 |
| Docket Number | No. 3848,3848 |
| Parties | STATE of Texas, Appellant, v. M. W. LEE, Appellee. |
| Court | Texas Court of Appeals |
Will Wilson, Atty. Gen., J. Arthur Sandlin, J. G. Davis, Asst. Attys. Gen., for appellant.
Davis, Kee & Thomas, Angleton, for appellee.
Appeal from a judgment of dismissal in a condemnation case. The judgment recites that it was so rendered because 'the necessary prerequisite jurisdictional facts had not been proved.' The only jurisdictional defects raised in the trial court or urged by appellee here relate to absence of proof (a) of service of notice of hearing by the commissioners, and (b) of failure to agree with the owner on the amount of damages, as required by Art. 3264, Vernon's Ann.Civ.Stat.
Appellant attempted to show service of notice by tendering the written notice of hearing issued by the commissioners with the return showing delivery to appellee in person. The court excluded this evidence on appellee's objection it was hearsay, and not the best evidence. Appellant was not permitted to prove by appellee that the notice was served on him as the return recited. The undisputed evidence shows appellee appeared before the commissioners on the date set for hearing, represented by counsel; that he agreed to a postponement and a re-setting of the hearing; that he again appeared at the hearing, filed pleadings, examined witnesses and introduced evidence as to land value. Under this record there was not a want of jurisdiction because of lack of notice. Jones v. City of Mineola, Tex.Civ.App., 203 S.W.2d 1020, 1023, writ refused; Ullman Estate v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 292 S.W.2d 897, writ ref. n. r. e.; Rayburn, Texas Law of Condemnation, Sec. 59(13) p. 191; Union Fraternal, etc. v. City of San Antonio, Tex.Civ.App., 315 S.W.2d 68, 70; Isaac v. City of Houston, Tex.Civ.App., 60 S.W.2d 543, writ dism.; and see city of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947, 949.
The court conducted a hearing in the absence of the jury to permit appellant to prove jurisdictional facts. To show failure to agree with appellee as to damages, and effort to agree, appellant offered a letter from the Director of the Department of Corrections admittedly received by appellee, enclosing a copy of the enabling Act and a plat, stating that two named appraisers assigned by the General Land Office had appraised appellee's land at a specified value; that the Texas Board of Corrections at a regular meeting had instructed the Director to offer appellee the amount of the highest appraised value, with appellee retaining all mineral rights. The letter requested appellee to advise within one week if he wished to sell at the stated figure. The trial court concluded the letter did not constitute an offer, but was only 'an invitation to Mr. Lee to make to offer.' The evidence showed appellee made no reply to the letter, and more than a month afterward the petition in condemnation was filed. Appellee appealed from the commissioners' award, which was over $11,000 in excess of the amount fixed in the letter. His pleading asserted the award had not fully compensated him for his damages. The emergency clause of the Act authorizing the present proceedings (hereafter referred to) recites 'the Texas Board of Corrections has been unable to agree with owners of such tracts for the purchase thereof.'
Under the recore made by appellant, and the record as a whole, dismissal for failure of proof on this jurisdictional fact was not authorized. Houston North Shore Ry. Co. v. tyrrell, 128 Tex. 248, 98 S.W.2d 786, 795, 108 A.L.R. 1508; Jones v. City of Mineola, Tex.Civ.App., 203 S.W.2d 1020, 1023, writ ref.; Curfman v. State, Tex.Civ.App., 240 S.W.2d 482, 484, writ ref. n. r. e.; Schlottman v. Wharton County, Tex.Civ.App., 259 S.W.2d 325, 330, writ dism.; Ullman Estate v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 292 S.W.2d 897, 899, writ ref. n. r. e.; 16 Tex.Jur. Secs. 317, 318, p. 656; Sec. 410, p. 752, 6 Nichols, Em.Domain, (1953), Sec. 24, 621, p. 59; 8 A.L.R. 471; 18 Am.Jur., Sec. 319, p. 962; 29 C.J.S. Eminent Domain Sec. 224, p. 1168.
Appellee defends the judgment by cross-point attacking constitutionality of S.B. No. 317, Acts 1959, 56th Leg., Reg.Sess., ch. 201, sec. 2, p. 472, under provisions of which these proceedings were instituted. This challenge was rejected in the trial court. Basis of the attack as briefed is that the bill contains more than one subject; and that its title is deceptive and misleading as not giving fair notice of its object and subject matter in contravention of Article 3, Section 35 of the Texas Constitution. The caption reads: 'An Act concerning State prison lands in Brazoria County; and declaring an emergency.' Sec. 1 authorizes the Texas Board of Corrections to sell and convey certain described land in Brazoria County. Sec. 2 provides that the Board shall have the right to acquire the surface estate in several described tracts, including land here involved, by eminent domain. The emergency clause recites that privately owned tracts within the limits of...
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Lee v. State
...of the trial court the Court of Civil Appeals overruled Lee's contention based upon Article 3, § 35 of the Constitution. See State v. Lee, 346 S.W.2d 498. Section 1 of Senate Bill No. 317 authorizes the Texas Board of Corrections to sell and convey certain described land in Brazoria County.......