IN RE: ETC KATY PIPELINE (2008)

OPINION DENYING REHEARING

On October 1, 2008, we granted the petition of ETC Katy Pipeline, LTD. (ETC) and ordered the conditional issuance of a writ of mandamus in each of these five original proceedings challenging the trial court's orders denying motions to appoint special commissioners and orders granting the landowners' motions to dismiss. The landowners have filed motions for rehearing, which we now deny.

Authority to Dismiss

The landowners first say that we incorrectly decided that the Respondent had no authority to dismiss the proceedings on res judicata grounds.   They point to section 21.019 of the Property Code, which is entitled “Dismissal of Condemnation Proceedings” as authority for the Respondent's order.   We disagree.  Section 21.019 of the Property Code requires the court to hold a hearing if the condemnor files a motion to dismiss.  Tex. Prop.Code Ann. § 21.019 (Vernon 2003).   But, we find no such authority for a motion filed by a condemnee during the administrative phase.

Relief Granted in Error

The landowners also point out that we directed Respondent to withdraw the wrong dismissal orders.   ETC agrees, and so do we.¹  Respondent granted ETC's motions to dismiss the first set of condemnation proceedings on March 31, 2008, and it was those orders that we inadvertently directed be withdrawn.   Respondent granted the landowners' motions to dismiss the second set of condemnation proceedings on June 17, 2008, and those are the orders that we now direct be withdrawn.

Appointment of Special Commissioners

We further ordered Respondent to appoint special commissioners in the second set of condemnation proceedings within 21 days of our order.   ETC informs us that Respondent did so on October 16.

Conclusion

Having determined that Respondent was without jurisdiction to refuse to appoint special commissioners and to grant the motions to dismiss on res judicata grounds, we reaffirm our conditional grant of mandamus relief.   The writ will issue in each case only if Respondent fails to withdraw his order granting the motion to dismiss signed on June 17, 2008, or fails to appoint special commissioners within 21 days from the date of this opinion if he has not already done so.²  The clerk is ordered to revise the judgment in each proceeding to reflect that Respondent's order to be withdrawn was signed on June 17, 2008.

The motion for rehearing is denied in each case.

FOOTNOTES

1.   We have fifteen pending cases involving the same parties and issues.

2.   The trial court cause numbers for the second set of condemnation proceedings are 08-03-18048-CV, 08-03-18049-CV, 08-03-18050-CV, 08-03-18051-CV, and 08-03-18052-CV.

VANCE, Justice.

Chief Justice GRAY dissents with a note.*