TX Eminent Domain: Chapter 21 Condemnation Procedure

TL;DR

Texas eminent domain procedure is governed by Property Code Chapter 21, with the pre-suit and litigation procedures at §§21.011-21.061. Before filing a condemnation petition, an entity with eminent domain authority must satisfy statutory pre-suit obligations under §§21.0111, 21.0112, and 21.0113: disclose all appraisal reports produced or acquired in the preceding 10 years, provide the property owner with the Landowner's Bill of Rights at least 7 days before the final offer, and make a bona fide offer consisting of a written initial offer followed by a written final offer at least 30 days later, based on a written appraisal by a certified appraiser and equal to or greater than the appraised value. The property owner has 14 days to respond to the final offer. If the condemnor cannot reach agreement, the entity files a condemnation petition under §21.012 in the district or county court at law; the court appoints three disinterested special commissioners under §21.014 who hold a hearing and issue a damages award under §21.042. Either party may object to the award under §21.018, converting the proceeding into a civil trial with jury trial rights. Section 21.047 governs assessment of costs: if the commissioners' award (or, on appeal, the court's damages determination) exceeds the condemnor's pre-proceeding offer, the condemnor pays costs; if it is less than or equal to the offer, the property owner pays costs. Under §21.018, written objections to the commissioners' findings must be filed on or before the first Monday following the 20th day after the commissioners file their findings with the court.

Constitutional and statutory framework

Texas eminent domain authority derives from the Texas Constitution Article I §17 (Bill of Rights), which permits taking of private property for public use upon adequate compensation and by due course of law. The 2009 Proposition 11 amendment tightened the constitutional standard to prohibit takings for economic-development purposes that transfer property from one private owner to another, absent specific public-use requirements. The Legislature has implemented the constitutional framework through Property Code Chapter 21, which consists of Subchapter A (jurisdiction and transfer of cases), Subchapter B (procedure), and Subchapter C (payment and possession).

The 2011 comprehensive reform in Senate Bill 18 significantly strengthened landowner protections by mandating pre-suit disclosure obligations, requiring a formal bona fide offer, prohibiting confidentiality provisions in offers, and requiring the Landowner's Bill of Rights to be provided before or when the entity first represents it has eminent domain authority. Additional refinements came in HB 1495 (2007), HB 2685 (2009), and various later sessions. For related state-specific frameworks that intersect with the constitutional framework, see our Texas constitutional homestead protection guide.

Pre-suit disclosure under §21.0111

Section 21.0111 requires an entity with eminent domain authority that wants to acquire property to disclose, at the time an offer is made, all appraisal reports produced or acquired by the entity in the 10 years preceding the offer that specifically relate to the owner's property. The disclosure must be by certified mail, return receipt requested. This obligation applies to the initial offer stage of the pre-suit process and gives the landowner access to the entity's own valuation history — essential context for evaluating whether the offer is reasonable.

The disclosure is reciprocal — the property owner must disclose to the entity any current and existing appraisal reports produced or acquired by the owner that specifically relate to the property and are used in determining the owner's opinion of value. Under §21.0111(b), the owner's disclosure must occur not later than the earlier of (1) the 10th day after receipt of any appraisal report, or (2) the third business day before a special commissioners' hearing at which the report will be used. Failure by either side to comply may result in evidentiary consequences at the special commissioners' hearing but does not by itself invalidate the eminent domain action.

Section 21.0111(c), added by SB 18 in 2011, prohibits the entity from including any confidentiality provision in the offer or agreement to acquire the property. The entity must expressly inform the landowner of the right to discuss the offer with others or to keep it confidential. Subsequent bona fide purchasers for value from the acquiring entity may conclusively presume that §21.0111 was satisfied under §21.0111(d), so post-condemnation title flows cleanly.

The Landowner's Bill of Rights under §21.0112

Section 21.0112 requires the entity to provide the landowner with the Landowner's Bill of Rights statement prescribed by Government Code §402.031 (published on the Texas Attorney General's website). The Bill of Rights must be delivered by first-class mail or otherwise not later than the 7th day before the entity makes a final offer to the landowner. In addition, the Bill of Rights must be provided before or at the same time the entity first represents to the landowner in any manner that the entity possesses eminent domain authority.

The Bill of Rights outlines the landowner's rights during the condemnation process, including the right to due process, to a jury trial after commissioner objections, to compensation for the value taken plus damages to any remaining property, to appraisal by a qualified appraiser, and to reimbursement of certain professional fees under limited circumstances. The Attorney General revises the Bill of Rights periodically; entities must use the current version. Failure to provide the Bill of Rights on time can affect the entity's ability to proceed and may support landowner objections in the underlying proceeding.

The bona fide offer requirement under §21.0113

Section 21.0113 requires an entity with eminent domain authority to make a bona fide offer before filing a condemnation petition. The bona fide offer is a two-stage written process: a written initial offer, followed by a written final offer made at least 30 days after the initial offer, based on a written appraisal by a certified appraiser, with the final offer amount equal to or greater than the appraised value. The 30-day gap between initial and final offers is a hard statutory minimum, and the landowner has 14 days after receiving the final offer to accept or reject.

The bona fide offer process is where most eminent domain negotiations resolve. Landowners with counsel commonly obtain their own appraisal to counter the entity's certified appraisal, and negotiation over the difference produces a settlement in the substantial majority of cases. Only where negotiation fails does the matter proceed to formal condemnation.

The condemnation petition and special commissioners under §21.012 and §21.014

If the entity cannot reach agreement with the landowner on damages, the entity files a condemnation petition under §21.012 in the district court or county court at law with jurisdiction under §§21.001-21.003. The petition must state that the entity provided the Landowner's Bill of Rights (§21.0112) and made a bona fide offer (§21.0113). Under §21.012(c), the entity must concurrently provide a copy of the petition to the property owner by certified mail, return receipt requested, and first class mail; if the entity has written notice that the owner is represented by counsel, the entity must also provide the petition to the attorney by first class mail.

The court appoints three disinterested real property owners of the county as special commissioners under §21.014. The commissioners must be disinterested (not related to the entity or the landowner, not employees of either), and must be qualified as real property owners in the county where the property is located. The commissioners schedule a hearing at which they receive evidence on the value of the property and any damages to remaining property under §21.041, then issue a damages award under §21.042. The award establishes the amount of compensation due; if either party wants to challenge it, they must file objections.

Special commissioners' award and §21.047 costs

Section 21.042 requires the special commissioners to assess damages according to the evidence — including the value of the property being taken and any damages to the property owner's remaining property, offset by any benefit to the remaining property from the public improvement. Section 21.041 governs the categories of evidence the commissioners may admit. The commissioners' written statement of damages under §21.048 becomes the initial award of just compensation. Under §21.049, the court is informed of the commissioners' decision.

Section 21.047 governs cost assessment. The special commissioners may adjudge the costs of the proceeding against any party. Section 21.047 has two directional rules: if the commissioners award greater damages than the amount the condemnor offered before proceedings began, OR if on appeal the court awards greater damages than the commissioners awarded, the condemnor pays the costs; if the commissioners' award or the court's damages determination is less than or equal to the amount the condemnor offered before proceedings began, the property owner pays the costs. This creates a strategic incentive for both sides to make realistic offers — under-offer by the condemnor produces cost exposure on top of a higher award, while over-demand by the landowner produces cost exposure if the eventual determination falls at or below the pre-proceeding offer. Costs typically include filing fees, commissioner fees, service costs, and certain other proceeding expenses (but not the landowner's attorney fees unless separately authorized under §21.019, §21.0195, or under §21.0113 for failure to comply with the bona fide offer requirement).

Objections, jury trial, and possession

Under §21.018, either party may object to the special commissioners' findings by filing a written statement of objections in the court that has jurisdiction. The written objection must be filed on or before the first Monday following the 20th day after the day the special commissioners file their findings with the court. Once objections are filed, the proceeding is converted into a normal civil case in court, with the eminent domain question tried before a jury if either party demands a jury under Texas jury trial rules. The trial is de novo — the special commissioners' findings do not carry deference; the court and jury reconsider the case from scratch on the merits.

Section 21.021 permits the condemnor to take possession of the property after the special commissioners have made their award and after the condemnor deposits the amount of the award into the court registry (plus any additional bond required by the court, and payment of the commissioners' fees). Possession is thus a post-commissioners'-award mechanism rather than a pre-award "quick take" — the special commissioners' hearing must occur first, and the condemnor must satisfy the deposit and fee obligations. This allows public projects to proceed even while damages are being litigated on appeal. If the final judgment awards more than the deposit, the condemnor pays the difference; if less, the landowner refunds the excess. Landowners who wish to challenge the condemnor's right to take (as distinct from the amount of damages) may raise threshold public-use, necessity, and authority challenges either before or after the commissioners' hearing, subject to the specific procedural framework applicable to that type of challenge.

Frequently Asked Questions

What is a "bona fide offer" under §21.0113?

A bona fide offer under §21.0113 is a two-stage written process. The entity must make a written initial offer, then a written final offer at least 30 days after the initial offer, based on a written appraisal from a certified appraiser, with the final offer amount equal to or greater than the appraised value. The initial offer must be delivered by certified mail with return receipt, and must include the Landowner's Bill of Rights under §21.0112 and disclosure of prior appraisal reports under §21.0111. The landowner has 14 days after receiving the final offer to accept or reject. Failure by the entity to comply with §21.0113 results in the court ordering the entity to pay the landowner's attorney fees and professional fees and abating the suit — a significant consequence intended to enforce compliance.

What is the Landowner's Bill of Rights and when must I receive it?

The Landowner's Bill of Rights is a statement prescribed by Texas Government Code §402.031 and published on the Texas Attorney General's website. It outlines the landowner's rights during the condemnation process, including the right to due process, jury trial after commissioner objections, compensation for the value taken plus damages to remaining property, and appraisal by a qualified appraiser. Under §21.0112, the entity must provide the Bill of Rights not later than the 7th day before making a final offer, and before or at the same time the entity first represents in any manner that it possesses eminent domain authority. Any landowner facing potential condemnation should locate the current version on the Attorney General's website and consult it immediately upon receiving any communication from a condemning entity.

Who are "special commissioners" and how are they selected?

Special commissioners under §21.014 are three disinterested real property owners of the county where the property being condemned is located. They are appointed by the judge of the court that has jurisdiction over the condemnation petition. The commissioners must not be related to either party, must not be employees of the condemning entity, and must be qualified as real property owners in the county. Their role is quasi-judicial: they schedule and conduct a hearing, receive evidence under §21.041, assess damages under §21.042, and issue a written award under §21.048. Special commissioners are not judges; they are Texas landowners empowered to assess damages in the first instance. Either party may object to their findings under §21.018, converting the proceeding to a civil trial with jury trial rights.

Under what circumstances does the condemnor pay my costs?

Section 21.047 authorizes the special commissioners to adjudge costs against any party. Two directional rules apply: if the commissioners award greater damages than the condemnor offered before proceedings began, or if on appeal the court awards greater damages than the commissioners awarded, the condemnor pays the costs. Conversely, if the commissioners' award or the court's damages determination is less than or equal to the amount the condemnor offered before proceedings began, the property owner pays the costs. Costs typically include filing fees, commissioner fees, service costs, and certain other proceeding expenses, but not the landowner's attorney fees except as separately authorized under §21.019 (dismissal of proceedings), §21.0195 (dismissal for TxDOT), or under §21.0113 (failure to comply with bona fide offer requirement, which triggers attorney and professional fees). Landowners who reasonably suspect an under-offer should proceed to the commissioners' hearing rather than accept — the cost-shifting rule creates leverage, but the reverse rule creates real risk if the pre-proceeding offer was reasonable.

Can I get a jury trial in an eminent domain case?

Yes, but only after objecting to the special commissioners' award. If neither party objects under §21.018, the commissioners' award becomes the judgment of the court and the case ends without a jury. If either party files timely written objections, the proceeding is converted into a normal civil case in court, and either party may demand a jury under Texas jury trial rules. The jury trial is de novo — the commissioners' findings do not receive deference. This structure is designed to move condemnation cases through commissioners quickly for the majority of parties who accept the award, while preserving jury trial rights for parties who want them.

Can the condemnor take possession before the final judgment?

Yes, but only after the special commissioners have made their award. Under §21.021, the condemnor may take possession by depositing the amount of the commissioners' award into the court registry (plus any additional bond required by the court and payment of the commissioners' fees) — this operates as a post-commissioners'-award possession mechanism rather than a pre-hearing "quick take." Once possession is taken, public projects can proceed even while damages are being litigated on appeal. If the final judgment awards more than the deposit, the condemnor pays the difference; if the final judgment awards less, the landowner refunds the excess to the condemnor. Landowners who wish to challenge the condemnor's authority to take at all (as distinct from the amount of damages) may raise threshold public-use, necessity, or authority challenges — these threshold challenges are addressed under specific procedures separate from the damages proceeding.

Bottom Line

Texas eminent domain procedure at Property Code Chapter 21 requires strict pre-suit compliance before condemnation can proceed. §21.0111 mandates disclosure by certified mail of all appraisal reports produced or acquired by the entity in the preceding 10 years, and prohibits confidentiality provisions in offers under §21.0111(c). §21.0112 requires the entity to provide the Landowner's Bill of Rights (Gov. Code §402.031, on the AG website) not later than the 7th day before the final offer and before first representing eminent domain authority. §21.0113 requires a bona fide offer: written initial offer, written final offer at least 30 days later based on a certified appraiser's written appraisal, final offer equal to or greater than the appraised value; 14-day landowner response window; failure to comply results in court ordering entity to pay landowner attorney and professional fees plus abating the suit. If negotiation fails, §21.012 authorizes filing of the condemnation petition, and §21.014 governs appointment of three disinterested county real property owners as special commissioners. §21.041 governs evidence admissible; §21.042 governs damages assessment; §21.048 sets the written award requirement. §21.047 governs costs: if the commissioners' award (or on appeal the court's damages determination) exceeds the condemnor's pre-proceeding offer, the condemnor pays costs; if it is less than or equal to the offer, the property owner pays costs. §21.018 provides objection rights — written objections must be filed on or before the first Monday following the 20th day after the commissioners file their findings with the court, and filing objections converts the case to civil trial with jury trial rights, de novo. §21.021 permits condemnor to take possession after the commissioners' award by depositing the award amount plus any additional bond and paying commissioners' fees — a post-award possession mechanism, not a pre-award "quick take." Constitutional foundation at Tex. Const. Art. I §17, with 2009 Prop 11 amendment restricting takings for economic-development transfers. For related state-specific frameworks, see our Texas constitutional homestead protection guide, our Texas statutory deed warranties guide, and our Texas property tax appraisal protest guide.

Source: Texas Property Code Chapter 21 — Eminent Domain (§§21.001-21.065) · Texas Attorney General — Landowner's Bill of Rights (Gov. Code §402.031) · SB 18 (Stats. 2011, ch. 81) — Eminent Domain Reform Framework