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Honorable Neal .E. Birmingham Criminal District Attorney Cass County Courthouse P. 0. Box 555 Linden, Texas 75563 Dear Mr. Birmingham: Opinion No. M-959 Re: Whether H.B. 305 and S.B. 240, 62nd Leg., R.S., 1971, conflict as to the filing of condemnation cases inCass County, and related questions. You request our opinion construing Senate Bill 240 and House Bill 305, both enacted by the 62nd Legislature at its Regular Session in 1971, wherein they relate to eminent domain proceedings in Cass County. Specifically you ask,

‘1. . . with whom should aproceeding in eminent domain be instituted, whowill appoint the special commissioners, receive their awards, and, inthe absence ofan objection to such awards, file judgment? ” You state that Cass County has no county court at law.

Our opinion is that apetition in condemnation should be filed with the Judge ofthe 5thJudicial District Court of Cass County who has jurisdiction over all further proceedings. 1

Senate Bill 240 is the latest act ofthe Legislature andwill prevail over House Bill 305 to the extent of any irreconcilable conflict. 2 Ex parte
1. This opinion does not cover the period oftime between May 19, 1971,

the effective date ofH.B. 305, and June 9, 1971, the effective date of S.B. 240. 2. H.B. 305 was passed by the House onApril 29, 1971, and by the Senate

on May 13, 1971. S.B. 240 was finally passed by both the Senate and the House on May 31, 1971.
-4696-c Honorable Neal E. Birmingham, page 2 (M-959)

De Jesus De La 0, 227 S.W. 2d 212 (Tex. Grim. 1950); Attorney General’s Opinions No. M-501 (1969) and No. V-990 (1950. ) To the extent the two Acts may be reconciled both must stand. Wright v. Broeter, 145 Tex. 142, 196 S.W. 2d 82 (1946. )

We know ofno law in effect at the time ofthe enactment ofSenate Bill 240 or House Bill 305 which granted to the county court of Cass County any special jurisdiction in eminent domain cases. Both ofthese Acts removed from that court differing jurisdiction in eminent domain cases. Touse Bill 305 removed certain trial jurisdiction and vested it inthe 5thJudicial District Court. Cass~County is inthis Judicial District and no other. Art. 199, v. c. s. Any and all jurisdiction relating to eminent domain which may have remained inthe County Court after the enactment ofHouse Bill 305 was wholly divested by Senate Bill 240 which was subsequently enacted. (See footnote 2. ) Section 1ofthe latter Act reads,

“The district courts ofall counties inthe State shall have jurisdiction concurrent with the county courts at law in eminent domain cases. The county courts shall have nojurisdiction in eminent domain cases. ” (Emphasis added. ) Further, Article 1960, Vernon’s Civil Statutes, as amended by Sec. 7ofSenate Bill 240 reads inpart,

‘1. . . The county courts shall have nojurisdiction in eminent domain cases. ” Section 2ofSenate Bill 240 reads,

“In all counties inwhich there is no county court at law withjurisdiction of eminent domain cases, the party desiring to initiate condemnation proceedings shall file its petition with the district judge; and objections to the award ofthe special commissioners shall be filed in the district court. ” (Emphasis added. ) Our opinion is that apetition in condemnation should be filed with the Judge ofthe 5th Judicial District, and that he should appoint the special commissioners, receive their award and, inthe absence ofan objection thereto, enter judgment. -4697-I

.’ Honorable Neal E. Birmingham, page 3 (M-959)
SUMMARY Inproceedings in eminent domain in Cass County the petition in condemnation should bd filed with the Judge ofthe 5thJudicial District, and he should appoint the special commi$sioners, receive their award and, inthe absence of an objection thereto, enter judgment.

eneral of Texas Prepared by John T. Richards, IIand Ronald E. Tigner, Assistant Attorneys General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Jerry Roberts Watson Arnold S.J. Aronson William Travis SAM MCDANIEL Acting Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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