Motion denied; Reversed in Part and Remanded, and Memorandum Opinion 

filed December 21, 2018.

In the

Fourteenth Court of Appeals 

NO. 14-17-00681-CV

GILCHRIST COMMUNITY ASSOCIATION, Appellant 

v. 

COUNTY OF GALVESTON, TEXAS, Appellee 

On Appeal from the County Court at Law No 2 

Galveston County, Texas 

Trial Court Cause No. CV-0076026 

M E M O R A N D U M O P I N I O N 

This appeal involves a condemnation suit brought by Galveston County 

against the Gulf Coast Rod, Reel and Gun Club (the Club) and Gilchrist 

Community Association (GCA). GCA challenges the trial court’s judgment in two 

issues. First, GCA contends the trial court erred by concluding it lacked standing. 

Second, GCA contends the trial court erred in granting summary judgment in favor 

of Galveston County because Galveston County lacked statutory authority to 
2

condemn the property. The Club does not itself appeal the trial court’s judgment 

but has submitted a brief challenging GCA’s appeal. Galveston County moves to 

dismiss GCA’s appeal for lack of standing. We deny the motion, reverse in part, 

and remand. 

I. BACKGROUND

Rollover Pass is a piece of property on Bolivar Peninsula. In March 2016, 

Galveston County filed a petition in condemnation seeking to condemn the 

property. At the time Galveston County filed suit and for many years prior, the 

Club owned the property while GCA managed and maintained it. In its petition, 

Galveston County named the Club as the owner of the property. GCA filed a 

notice of appearance in the suit, claiming to be a tenant of the property. 

The trial court appointed special commissioners, and GCA appeared at the 

special commissioners’ hearing on the condemnation. At the conclusion of the 

proceeding, the special commissioners awarded the Club $1,600,000 for the 

property. The special commissioners made no award to GCA. GCA objected. 

After GCA’s objection, on August 16, 2016, Galveston County amended its 

petition to include GCA as a defendant. The petition described GCA as “an entity 

which either owns, possesses, or claims some interest in title to the land 

described[.]” 

On August 24, 2016, Galveston County deposited the amount awarded by 

the special commissioners into the court’s registry. 

On March 21, 2017, Galveston County filed a motion for summary judgment 

regarding its right to take. In a footnote, Galveston County noted that it disputed 

GCA’s claim to any ownership interest in the property. Both the Club and GCA 

responded to the motion for summary judgment. On April 19, 2017, the trial court 
3

granted partial summary judgment on Galveston County’s right to take and granted 

possession to Galveston County.1 The value of the property had yet to be 

determined. 

Subsequently, Galveston County filed a Motion to Require Proof of 

Standing or, Alternatively, to Preclude the Offer of Evidence (“Motion to Require 

Proof of Standing”). In the motion, Galveston County argued that GCA lacked 

standing to seek affirmative relief, or alternatively, should be precluded from 

offering evidence at trial. Galveston County asserted that GCA lacked standing 

because GCA had “no personal stake in the litigation at the time the condemnation 

was filed.” In its reply in support of its motion, Galveston County prayed for the 

trial court to “dismiss the GCA as a party” after “find[ing] the GCA lacks 

standing.” On July 21, 2017, the trial court signed an order granting the motion “in 

all respects,” ordering that GCA “lacks standing in this cause, and in the event of 

trial, shall be precluded from offering evidence of any kind.” 

On July 26, 2017, Galveston County and the Club entered into an agreed 

final judgment in which the court found Galveston County was entitled to 

condemn the property and the Club should be awarded $1,750,000 as 

compensation. In addition to awarding condemnation to the County and the 

settlement payment to the Club, the amended agreed final judgment stated that 

GCA was not entitled to any compensation for the taking of Rollover Pass because 

of the trial court’s finding that GCA lacked standing: 

IT IS FURTHER ORDERED that, in light of this Court’s ruling on 

July ___, 2017 (sic), granting Petitioner’s Motion and Supplemental 

 

1 GCA filed a notice of appeal on April 25, 2017, seeking to appeal the trial court’s 

partial summary judgment. This court docketed the appeal as cause number 14-17-00348-CV, 

but later dismissed the appeal because the partial summary judgment was unappealable as an 

interlocutory order. 
4

Motion to Require Proof of Standing or, Alternatively, to Preclude the 

Offer of Evidence, and finding Defendant, Gilchrist Community 

Association, to lack standing in this proceeding, any claim by 

Defendant, Gilchrist Community Association, for adequate 

compensation for the taking in this proceeding; reasonable and 

necessary fees for attorneys, appraisers, experts, or other expenses; or 

any other request for affirmative or monetary relief of any kind is 

DENIED. 

This appeal followed. 

II. ANALYSIS

GCA argues that the trial court erred in holding that GCA lacked standing. 

GCA also argues that the trial court erred by granting summary judgment on 

Galveston County’s right to take because Galveston County’s “declared purpose of 

building a park was a subterfuge for assisting the [General Land Office of Texas] 

in closing Rollover Pass.” Galveston County moves to dismiss the appeal 

contending this court lacks jurisdiction because GCA lacks standing to bring the 

appeal. 

A. Standing to appeal 

As a threshold issue, we must determine the matter of this court’s 

jurisdiction. Galveston County’s motion to dismiss GCA’s appeal asserts that 

GCA has no standing to appeal because GCA does not have an ownership interest 

in the property at issue. This argument is without merit. 

Generally, a named party to the suit can bring an appeal. See City of San 

Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750, 754 (Tex. 2003). To 

appeal an alleged error, a party must show that the error injuriously affects it. 

Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). Contrary to 

Galveston County’s assertion, ownership of property is not required to make this 

showing in a case involving property. Id. at 844 (“We held that Bi-Ed could 
5

appeal despite the fact that it asserted no ownership interest in the property, 

reasoning that it had a ‘justicable interest’ in pursuing the case. . . . This is in 

accord with our well-established rule that, to appeal an alleged error, a party must 

show that the error injuriously affects it.”); Bi-Ed Ltd. v. Ramsey, 935 S.W.2d 122, 

123 (Tex. 1996) (plaintiff had standing to appeal judgment against it in action 

against city and owner of adjacent property for alleged wrongful obstruction of 

access to road on adjacent property, since trial court’s judgment refused to grant 

any of relief sought by plaintiff). 

Galveston County’s contention that GCA has no standing to appeal because 

GCA does not have an interest in the property is one of the very issues that GCA 

appeals. To support its argument that the trial court erred by granting Galveston 

County’s Motion to Require Proof of Standing, GCA argues that it has a justiciable 

interest in the property. This court has jurisdiction to review questions of standing 

and jurisdiction. State v. Naylor, 466 S.W.3d 783, 787 (Tex. 2015) (“We always 

have jurisdiction to resolve questions of standing and jurisdiction.”). Because 

GCA is a named defendant in the underlying suit and because GCA appeals the 

trial court’s standing determination against it, we reject Galveston County’s 

argument that GCA has no standing to appeal.2

 We deny Galveston County’s 

motion to dismiss and proceed to address the merits of GCA’s appeal. 

B. Standing before the trial court 

 

2

 We are likewise unpersuaded by the arguments of the Club and Galveston County that 

GCA lacks standing because the Club withdrew the condemnation award from the registry of the 

trial court. Tejas Gas Corp. v. Herrin, as well as other cases the Club and Galveston County 

cited in support of this proposition, states the principle that after the landowner has withdrawn an 

award from the registry of the court or advocated for its withdrawal, he cannot thereafter contest 

the taking. See, e.g., 716 S.W.2d 45, 45–46 (Tex. 1986). Courts have reasoned that the 

withdrawal or advocacy for withdrawal effectively constitutes consent to the taking. See, e.g., id. 

GCA neither withdrew any money from the registry nor advocated for the Club to withdraw the 

money. Therefore, Tejas and its progeny are inapposite. 
6

GCA makes several arguments in support of its contention that the trial court 

erred by granting Galveston County’s Motion to Require Proof of Standing.3 

Because of the unique posture of this case, we need not reach most of the 

arguments raised by GCA. 

Standing is implicit in the concept of subject-matter jurisdiction, and 

subject-matter jurisdiction is essential to the authority of a court to decide a case. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). 

We review standing under the same standard by which we review subjectmatter jurisdiction generally. Id. at 446. Whether the trial court has subject-matter 

jurisdiction is a question of law that we review de novo. Tex. Dep’t of Transp. v. 

A.P.I. Pipe & Supply, LLC, 397 S.W.3d 162, 166 (Tex. 2013); Tex. Dep’t of Parks 

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 

The question of standing applies to a plaintiff or a party seeking affirmative 

relief. The standing inquiry “focuses on the question of who may bring an action.” 

Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015) (quotation 

omitted); see Lazarides v. Farris, 367 S.W.3d 788, 796–97 (Tex. App.—Houston 

[14th Dist.] 2012, no pet.) (same); see also Lewis v. Aurora Loan Servs., No. 01-

15-00362-CV, 2016 WL 887176, *3 (Tex. App.—Houston [1st Dist.] Mar. 8, 

2016, no pet.) (mem. op.) (“The defendants are not the plaintiffs in this case. 

 

3

 First, GCA argues that it had a justiciable interest in the condemnation of Rollover Pass 

because before the condemnation suit commenced, it had “provided supervision over the 

property.” Second, GCA states that many of its members “had property or livelihoods which 

depended, in some degree, on the continuing success of Rollover Pass as a public attraction.” 

Third, GCA suggests that it may have associational standing as a “public interest group.” 

Fourth, GCA argues that Galveston County’s standing argument is precluded by estoppel. GCA 

complains that Galveston County raised its standing argument “after the GCA had participated in 

the litigation for about a year, with the tacit approval of the County.” GCA points out that in 

Galveston County’s First Amended Petition, the County identified the GCA as a defendant. 

Finally, GCA asserts standing as a leaseholder of a Rollover Pass. 
7

Lewis is. Thus, the issue is not whether defendants have standing to maintain this 

action.”). 

Condemnation of private property involves a two-part process prescribed in 

sections 21.012 through 21.016 of the Texas Property Code. Tex. Prop. Code Ann. 

§ 21.011 (West 2018). During the first phase, the party seeking condemnation 

initiates an administrative proceeding by filing a petition for condemnation in the 

trial court. Tex. Prop. Code Ann. § 21.012 (West 2018); Hubenak v. San Jacinto 

Gas Transmission Co., 141 S.W.3d 172, 179 (Tex. 2004); Amason v. Nat. Gas 

Pipeline Co., 682 S.W.2d 240, 241 (Tex. 1984). Once a petition is filed, the trial 

court appoints three disinterested individuals as special commissioners to assess 

the damages. Tex. Prop. Code Ann. § 21.014 (West 2018). The special 

commissioners conduct a hearing to determine the amount of damages. Tex. Prop. 

Code Ann. § 21.015 (West 2018). If either party files objections to the special 

commissioners’ award,4 “the . . . award is vacated and the administrative 

proceeding converts into a normal pending cause in the court with the condemnor 

as plaintiff and the condemnee as defendant.” Amason, 682 S.W.2d at 242. In the 

judicial proceeding, the burden of proof regarding the right to take is generally on 

 

4 Only “owners” are entitled to share in condemnation award. See Tex. Prop. Code Ann. 

§ 21.042 (West 2018) (referring to property owners as those entitled to compensation). 

However, the term “owner” is broadly defined in the eminent domain context. The term 

“owner,” as used in the statutes governing eminent domain, embraces not only the owner but 

also a tenant for life, a lessee for years, and any other person who has an interest in the property 

that will be affected by the condemnation. Houston North Shore Ry. Co. v. Tyrrell, 98 S.W.2d 

786, 793 (Tex. 1936) (“The term ‘owner’ as used in condemnation statutes, embraces not only 

the owner of the fee but a tenant for life, a lessee for years, and any other person who has an 

interest in the property that will be affected by the condemnation.”); see Elliott v. Joseph, 351 

S.W.2d 879, 884 (Tex. 1961) (“The term ‘owner’ in this sense includes a lessee for years as well 

as any other person who has an interest in the property.”); State v. Fiesta Mart, Inc., 233 S.W.3d 

50, 55 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (“Unless a contrary provision exists 

in the lease agreement, a lessee is entitled, as a matter of law, to share in a condemnation award 

when part of its leasehold interest is lost by condemnation.”)
8

the condemnor, while the burden to prove the value of condemned property is on 

the condemnee. Religious of Sacred Heart of Tex. v. City of Houston, 836 S.W.2d 

606, 613 (Tex. 1992). 

We conclude that because GCA is the defendant in this condemnation cause 

of action, GCA is not required to establish standing. As the plaintiff, condemnor 

Galveston County, not the defendant condemnee GCA, sought affirmative relief in 

the court below. Galveston County amended its petition to add GCA as a 

defendant, and Galveston County asserts that GCA is bound by the trial court’s 

resulting judgment that GCA has no leasehold interest in the property and is not 

entitled to compensation. Thus, there was a real controversy between Galveston 

County and GCA regarding whether GCA had a compensable interest in the 

property, and that controversy was actually determined by the relief Galveston 

County sought and obtained from the trial court. See Austin Nursing Ctr., Inc. v. 

Lovato, 171 S.W.3d 845, 849 (Tex. 2005) (explaining these two requirements for 

standing). GCA did not intervene in the suit or file any counterclaim. Other than a 

motion for new trial, GCA did not file any motion for affirmative relief. 

Galveston County argues, “when a condemnation case reaches the 

compensation stage, a party nominally called a Defendant becomes more like a 

Plaintiff.” We disagree that this observation affects the standing analysis. As a 

condemnee, GCA filed objections to the special commissioners’ award and GCA 

had the burden to prove the amount of adequate compensation for the taking. 

Religious of Sacred Heart of Tex., 836 S.W.2d at 613. However, neither its 

objections nor the shifted burden converted GCA into a plaintiff. See Collin Cty. v. 

Hixon Family P’ship, Ltd., 365 S.W.3d 860, 866–68 (Tex. App.—Dallas 2012, pet. 

denied) (holding neither objections nor shifting of burden to prove adequate 

compensation causes condemnee to become plaintiff in trial court) (citing Denton 
9

Cty. v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962)); see also Duncan v. Calhoun 

Cty. Navigation Dist., 28 S.W.3d 707, 709 (Tex. App.—Corpus Christi 2000, pet. 

denied) (holding that issues of “right to take” and “just compensation” are 

components of single, indivisible condemnation cause of action). If GCA failed to 

carry its burden to prove it had a compensable leasehold interest, the consequence 

would be a binding judgment that GCA is not entitled to compensation from 

Galveston County, not a dismissal of Galveston County’s suit against GCA for 

lack of subject-matter jurisdiction. Galveston County cannot have it both ways. 

Moreover, even if GCA could be analogized to a plaintiff, its failure to prove 

entitlement to compensation would not deprive the court of subject-matter 

jurisdiction. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76–77 (Tex. 2000) 

(“‘The right of a plaintiff to maintain a suit, while frequently treated as going to the 

question of jurisdiction, has been said to go in reality to the right of the plaintiff to 

relief rather than to the jurisdiction of the court to afford it.’” (quoting 21 C.J.S. 

Courts § 16, at 23 (1990))); Mitchell v. Turbine Res. Unlimited, Inc., 523 S.W.3d 

189, 197 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (holding that 

whether property belongs to party is question going to merits of court’s order, not 

court’s jurisdiction). For these reasons, the trial court erred by determining that 

GCA lacked standing. 

Galveston County points to the decision of this court in Mayberry v. Kinder 

Morgan Crude & Condensate, LLC, No. 14-16-00523-CV, 2018 WL 456709 (Tex. 

App.—Houston [14th Dist.] Jan. 18, 2018, pet. denied) (mem. op.), as a case where 

this court determined that a condemnee lacked standing. In Mayberry, Mayberry 

himself (the condemnee) asserted in trial court filings that he had no interest in the 

property being condemned. Id. at *2–3. Mayberry also asserted in various trial 

court filings that the court lacked jurisdiction to hear the case because he was the 
10

“wrong defendant.” Id. at *3. As such, Mayberry judicially admitted he was not a 

proper party to the case. Nonetheless, the case was called to trial and Mayberry 

was permitted to testify regarding his ownership interest in the property at issue 

before a determination was made with respect to his “standing.” Id. The trial court 

signed a final judgment only after hearing evidence at trial. The judgment stated 

that Mayberry failed to meet his burden to prove that he had an ownership interest 

in the property. Id. Although this court ultimately held that Mayberry lacked 

“standing” because he had no compensable interest in the property at issue, the 

holding was based on Mayberry’s judicial admissions and his failure at trial to 

establish any ownership interest in the property. Id. at *4–5; see also id. at *1 

(“Because we conclude that Mayberry lacks an ownership interest in the 

condemned property, we affirm the trial court’s judgment.”). As such, Mayberry

does not properly support Galveston County’s assertion that a condemnee has the 

burden to establish standing, much less that its failure to do so deprives the court of 

subject-matter jurisdiction yet does not prevent the court from issuing a judgment 

binding the condemnee. We decline to extend Mayberry to support such holdings, 

which would be contrary to the decisions cited above. 

Even if a condemnor could properly assert a condemnee lacks standing to 

participate in a condemnation suit initiated by the condemnor, a condemnor’s right 

to dismiss a condemnation proceeding is generally limited after the condemnor has 

taken possession of the property. Hooks v. Fourth Court of Appeals, 808 S.W.2d 

56, 60 (Tex. 1991). After a condemnor takes constructive or actual possession of a 

property, the condemnor may dismiss the condemnation proceeding only if the 

owner is not prejudiced or harmed as a result. Id. at 60–61; see Fort Worth 

Concrete Co. v. State, 400 S.W.2d 314, 315–17 (Tex. 1966) (rejecting request for 

dismissal of party based argument that party had no interest in land sought to be 
11

condemned where condemnor had already taken possession); see also Mount 

Vernon United Methodist Church v. Harris Cty., No. 14-16-00590-CV, 2017 WL 

1512251, *2 (Tex. App.—Houston [14th Dist.] Apr. 25, 2017) (mem. op.) (quoting 

Fort Worth Concrete, 400 S.W.2d at 317, and applying its principles to a 

lienholder). 

Here, it is undisputed that Galveston County deposited the commissioner’s 

award into the court registry and thereby gained constructive possession of the 

property. See Hooks, 808 S.W.2d at 61. Whether GCA was prejudiced by 

Galveston County’s constructive taking is a factual matter the trial court did not 

address. See id. For this reason and because GCA is not the plaintiff in this action 

and seeks no affirmative relief other than the “just compensation” that is part and 

parcel of Galveston County’s condemnation cause of action, the trial court erred by 

granting Galveston County’s Motion to Require Proof of Standing. We sustain 

GCA’s first issue. 

C. Summary judgment on right to take 

GCA’s second issue challenges the trial court’s ruling on Galveston 

County’s motion for partial summary judgment on the “right to take.” Analysis of 

this issue is premature. Galveston County argues GCA waived the issue “because 

it was never raised in response to the County’s summary judgment motion on the 

right to take.” However, the motion for partial summary judgment was not clearly 

asserted against GCA. 

At oral argument, counsel for Galveston County took the position that the 

motion was asserted against both defendants. In its partial motion for summary 

judgment on the “right to take,” however, Galveston County took the position that 

GCA had no ownership interest in the property. In a few instances in the motion, 

Galveston County referred to “Defendants,” plural, but the motion was based on 
12

the landowner’s inability to show fraud, bad faith, or arbitrary and capricious acts, 

and Galveston County did not acknowledge, or even argue in the alternative, that 

GCA was a landowner. Instead, Galveston County relied upon its Motion to 

Require Proof of Standing to eliminate GCA from the case. Although GCA joined 

the Club’s response to the partial motion and other related briefing, it is not clear 

that the trial court ruled on Galveston County’s right to take the property from 

GCA. 

We conclude that in this circumstance, the appropriate course is to remand 

the case to the trial court for further proceedings. See Associated Air Ctr. v. Tary 

Network Ltd., No. 05-13-00685-CV, 2015 WL 970664, at *7 (Tex. App.—Dallas 

Mar. 4, 2015, no pet.) (mem. op.) (“As long as there is a probability a case has for 

any reason not been fully developed, an appellate court has the discretion to 

remand rather than render a decision.”); see also United States Fire Ins. Co. v. 

Carter, 473 S.W.2d 2, 3 (Tex. 1971) (holding remand is appropriate when a case, 

for any reason, has not been fully developed); Scott Bader, Inc. v. Sandstone 

Prods., Inc., 248 S.W.3d 802, 822 (Tex. App.—Houston [1st Dist.] 2008, no pet.) 

(same); De Monet v. PERA, 877 S.W.2d 352, 361 (Tex. App.—Dallas 1994, no 

writ) (“Addressing . . . independent grounds not considered by the trial court 

usurps the trial court’s authority to evaluate and rule on issues before it and denies 

the appellate court the benefit of the trial court’s decision.”). 

On remand, Galveston County will have a full and fair opportunity to assert 

its claims regarding GCA’s ownership interests, or lack thereof, on summary 

judgment and, if necessary, its right to take with respect to GCA. We think this 

result best comports with the interest of justice. See Tex. R. App. P. 43.3(b). 
13

III. CONCLUSION

We reverse the trial court’s order granting Galveston County’s Motion to 

Require Proof of Standing and reverse its judgment as to GCA. We remand the 

case to the trial court for further proceedings. 

 /s/ Marc W. Brown 

 Justice

Panel consists of Justices Jamison, Busby, and Brown.