### 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 essentialportions of your request for an opinion are as follows:

"In conjunctionMth our extensiveprogram of acquisition of rights of vJaythrough eminent domain proceedings, the problem of bringing all of the interestedparties before the Courthas become intensifiedby the fact that in numerous occasions infinite interests are held by persons unknown and if known are beyond the Jurisdictionof our Court; therefore, I respectfully requestyour 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 constructionof Rule 42.
Rule 42 is titled "classactfons" and provides that under certain conditionswhen persons cqnstitutinga class are so numerous as to make it impracticableto bring them before the court, a class action may be brought dispensingwith the necessity of naming and citing everyone :!ho might be interested in the litigation.

.!condemnationproceeding 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 ?ziththe 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 ,filingof the same with the County Judge file objections thereto in writ?ng and thereupon the adverseparty 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 condemnationproceeding, 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 objectionswithin the ten days prescribed by the Statute. This is clearly establishedby ,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.

"Condemnationnroceedings did not become cause to be tried unt&l

ObjeCtions to the awardwere filed." Emphasis added). Slncla:ir v. Peters 

### 323 S.W.2d 

### 651. __--. Beaumont C.C.A., 1959,n.V.h.7-^- .-_I
"Filingof objections convertedthe condemnation proceedings into a cause of actionpending in the County Court." (Zmphasisadded.)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: ":'

condemnationproceeding becomes a civil case if objections to the Commissioner'sAwardare filed within the prescribed time." (Emphasisadded) (SupremeCourt 1958). Pearsonv. State, 315 S.W.2d 935

To the same effect are (El i'aso

C.C.?:.1952, errorX&m. 726, (71 ?aso C.C.&. 1948, 247 S.U.2d 

### 585, Mard, 213 S.%'.2d

Since at the time the condemnationproceeding 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:ule42 has no application. Part II, Rules of Civil Procedure, commencing with Rule 15 and endingwith 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

so hold, that ;iule42 does no? apply tc condemnationproceedings and a "classaction" suit is Inapplicable..