Board of Regents of the University of Houston System and The State of Texas v. FKM Partnership, LTD., A Texas Limited Partnership, NationsBank of Texas N.A., City of Houston, County of Harris, Houston Community College, and Houston Independent School District--Appeal from Co Civil Ct at Law No 3 of Harris County

Reversed and Remanded and Majority and Dissenting Opinions filed April 14, 2005

Reversed and Remanded and Majority and Dissenting Opinions filed April 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00392-CV

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 BOARD OF REGENTS OF THE UNIVERSITY OF HOUSTON SYSTEM

AND THE STATE OF TEXAS, Appellants

V.

FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP, NATIONSBANK OF TEXAS N.A., CITY OF HOUSTON, COUNTY OF HARRIS, HOUSTON COMMUNITY COLLEGE, AND HOUSTON INDEPENDENT SCHOOL DISTRICT, Appellees

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On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 712,808

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D I S S E N T I N G O P I N I O N

I respectfully dissent because I believe the trial court lost jurisdiction over the special commissioners=award. The majority holds that dismissal of this condemnation proceeding is not mandatory and would not fulfill the statutory purpose. My colleagues rely on this court=s opinion in Blasingame v. Krueger, 800 S.W.2d 391, 394 (Tex. App.CHouston [14th Dist.] 1990, orig. proceeding) where we held A[The county] court is not confined to simply reviewing [the commissioners=] findings like an appellate court.@). The court in Blasingame, however, did not address the jurisdiction of the trial court to review the special commissioners= award.

First, an appeal to the district court or county court at law in a condemnation suit is a special trial de novo proceeding; however, jurisdiction is appellate as distinguished from original or concurrent. State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 791 (1960). Thus, although the trial is de novo, it is limited to the issues presented at the administrative proceeding before the special commissioners, the administrative tribunal from which the court=s jurisdiction is derived. Board of Regents of University of Texas System v. Puett, 519 S.W.2d 667, 670B71 (Tex. Civ. App.CAustin 1975, writ ref=d n.r.e.).

Second, the majority holds that Texas jurisprudence permits the condemning authority to amend its condemnation pleadings. While this is true, the condemning authority may not amend to the prejudice of the landowner. An amendment that materially prejudices the rights of the landowner deprives the court of jurisdiction because it injects new subject matter into the proceeding. Nelson, 334 S.W.2d at 791.

Finally, the majority holds that dismissing the condemnation proceeding does not fulfill the statutory purpose. I respectfully disagree. The Texas Supreme Court opined as follows:

A holding that the county court on appeal has all of the power of a court of original jurisdiction would tend to thwart the purpose of the Legislature in providing for the administrative hearing. It would also violate the elementary rule as to the subject matter over which an appellate tribunal may properly exercise its jurisdiction. See Wilbarger County v. Hall, Tex. Com. App., 55 S.W.2d 797; 2 Am. Jur., Appeal and Error s 11.

Id.

It is my considered opinion that the majority confuses the requirements for appellate review with the concept of trial de novo. Moreover, by finding that the county court has original jurisdiction, the majority thwarts jurisdictional prerequisites expressed or implied in the statute. Accordingly, I respectfully dissent and would affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Majority and Dissenting Opinions filed April 14, 2005.

Panel consists of Justices Fowler, Edelman, and Seymore. (Fowler, J., majority.)