THEATTORNEY GENERAL 

0eT~xAs 

Jr. Bill Thomas Opinion Xo. WJ-956 

County Attorney 

Taylor County .Re : i:lhether or not Rule 42 of' 

Abilene, Texas Vernon's Texas Rules of 

Civil Procedure, relating 

to Class >&ions, will 

apply to Rminent Domain 

Dear Mr. Thomas: proceedings. 

The essential portions of your request for an opinion 

are as follows: 

"In conjunction Mth our extensive program of 

acquisition of rights of vJay through eminent domain 

proceedings, the problem of bringing all of the 

interested parties before the Court has become 

intensified by the fact that in numerous occasions 

infinite interests are held by persons unknown and 

if known are beyond the Jurisdiction of our Court; 

therefore, I respectfully request your opinion as 

to whether or not Rule 42 of Vernon's Texas Rules 

of Civil Procedure, which relates to Class Actions, 

will apply to eminent domain proceedings." 

Your request calls for a construction of Rule 42. 

Rule 42 is titled "class actfons" and provides that under 

certain conditions when persons cqnstituting a class are so 

numerous as to make it impracticable to bring them before the 

court, a class action may be brought dispensing with the necessity of naming and citing everyone :!ho might be interested in 

the litigation. 

.! condemnation proceeding is unique in that it is not filed 

in court nor with the clerk of any court but under Article 3264, 

Section 1 of the Statutes, the Petition or #Statement is filed 

?zith the County Judge. ??h 1s is therefore a special proceeding 

and is in no sense a court action u?on the filing of same, 

Article 3266, Section 6, of' the Lltatutes provides that if either 

party be dissatisfied~ with the decision, such party may within 

ten days after the ,filing of the same with the County Judge file 

objections thereto in writ?ng and thereupon the adverse party 

shall be cited and the cause r,hall be tried and determined as i.n 

other civil causes in the County Court. 
dr. Bill Thomas, page 2 (!i3j!-g56),. 

A condemnation proceeding, then, i.s merely a special proceeding and does not become a cause of action or court case 

unless and until one of the parties is aggrieved and files 

objections within the ten days prescribed by the Statute. This 

is clearly established by ,the authorities. 

Texas Jurisprudence> foll.o!>iing the Statute and the decisions, 

lays do%n the rule that objections to the award convert the rroceeding into a cause of action to be tried and determined as 

other civil cases. 16 %ex. Jurisprudence, page 726, Section 386. 

"Condemnation nroceedings did not become cause 

to be tried unt&l ObjeCtions to the award were filed." 

Emphasis added). __--. Slncla:ir v. Peters 323 S.W.2d 651. 

Beaumont C.C.A., 1959, n.V.h.7 

-^- .-_ I 

"Filing of objections converted the condemnation proceedings into a cause of action pending in 

the County Court." (Zmphasis added.)Gowie v. 

300 .5.:X.2d 671. (1%. IYorth C.C.&. 1957, n.w.h.) 

Ford, 

Cur Supreme Court has recently spoken on this matter and 

held: ":' condemnation proceeding becomes a civil case if objections to the Commissioner's Award are filed within the prescribed 

time." (Emphasis added) 

(Supreme Court 1958). 

Pearson v. State, 315 S.W.2d 935 

To the same effect are 

(El i'aso C.C.?:. 1952, error X&m. 

726, (71 ?aso C.C.&. 1948, 

247 S.U.2d 585, 

Mard, 213 S.%'.2d 

Since at the time the condemnation proceeding is filed and 

the parties defendant are listed, it - is .__- not a court action but 

only a special proceeding filed r:ixthe County Judge, I:ule 42 

has no application. Part II, Rules of Civil Procedure, commencing with Rule 15 and ending with Rule 351, deal only with 

actions or cases in the district and county courts and have no -..-- application-%hatever-%%i~~pecial proceeding in condemnation. 

It is therefore our op?.nion, and ':~ic sohold, that ;iule 42 

does no? apply tc condemnation proceedings and a "class action" 

suit is Inapplicable. 
.