.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00178-CV 

KENNETH RUSSELL AND TERESA 

RUSSELL

APPELLANTS

V.

STATE OF TEXAS AND TARRANT 

COUNTY, TEXAS

APPELLEES 

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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 2013-001970-2

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MEMORANDUM OPINION1

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In two issues, Appellants Kenneth Russell and Teresa Russell (collectively, 

the Russells) appeal the trial court’s order denying their application for temporary 

 

1See Tex. R. App. P. 47.4.
2

injunction against Appellees the State of Texas (the State) and Tarrant County, 

Texas (the County).2 We affirm.

Background

The Russells own land in Benbrook, Tarrant County, Texas. On August 4, 

2005, the Benbrook City Council passed Resolution No. 2005-16, which 

supported the inclusion of the widening of Benbrook Boulevard (U.S. 377) from 

Interstate 20 to Winscott Road as part of the Tarrant County Transportation Bond 

program and committed at least $1 million from the City’s general obligation 

bonds or certificates of obligation as matching funds for the project. Minutes 

from the January 5, 2012 Benbrook City Council meeting reflect that David 

Gattis, Benbrook’s Deputy City Manager, delivered a report to the city council on 

a proposed memorandum of understanding between the City of Benbrook, the 

County, the Regional Transportation Council, and the Texas Department of 

Public Transportation for funding and implementation of the project to widen U.S. 

377. In his report, Gattis informed the council that the County would assume 

responsibility for the right-of-way acquisition. A motion was made and seconded 

to approve the memorandum agreement and to authorize the mayor to execute 

it, but the minutes do not reflect that the city council voted on the motion.

By resolution and order adopted by the Tarrant County Commissioners 

Court on March 13, 2012, the Commissioners Court ordered and decreed that a 

 

2

This is an accelerated interlocutory appeal. See Tex. Civ. Prac. & Rem. 

Code Ann. § 51.014(a)(4) (West 2015).
3

public necessity existed for the construction of the roadway improvements on 

U.S. 377 from Winscott Road/Lakeway Drive to Interstate 20, approved plans for 

the project, and authorized the Right of Way Section of the Tarrant County 

Transportation Services Department to acquire by negotiation tracts of land 

located within and needed for the project. On March 19, 2013, the Tarrant 

County Commissioners Court passed a resolution authorizing the County to use 

the power of eminent domain to acquire 863 square feet of the Russells’ property 

for the purpose of making improvements to U.S. 377 and the Tarrant County 

District Attorney to file condemnation proceedings for the acquisition of the 

Russells’ property.

The State and the County filed a petition for condemnation on April 3, 

2013. On April 5, 2013, the county court appointed three special commissioners

to determine the Russells’ damages arising from the condemnation. The special 

commissioners scheduled a hearing for May 1, 2013, and the Russells were 

served with notices of hearing through their attorney on April 17, 2013. The 

special commissioners rescheduled the hearing to June 12, 2013, and the

Russells were served with amended notices of hearing through their attorney on 

May 6, 2013. On June 7, 2013, the Russells’ counsel filed a motion for 

continuance of the hearing, and the special commissioners rescheduled the 

hearing for June 26, 2013.
4

The hearing was held on June 26, 2013. The Russells did not attend. The 

special commissioners awarded the Russells $18,336 for the value of the land 

taken and assessed costs and fees against the Russells.

On July 8, 2013, the Russells filed a plea to the jurisdiction and objection 

to the award. Shortly thereafter, the State and the County deposited $18,336 

into the registry of the court and claimed the right to enter upon and take 

possession of the property. On March 13, 2014, the Russells filed an application 

for temporary restraining order and temporary injunction, alleging that the State 

and the County had commenced work on the project and were threatening to 

trespass on their property and asking the trial court to enjoin the State and the 

County from entering on their property. The trial court denied the Russells’ 

application for temporary restraining order and their application for temporary

injunction.

Standard of Review 

A temporary injunction’s purpose is to preserve the status quo of the 

litigation’s subject matter pending a trial on the merits. Butnaru v. Ford Motor 

Co., 84 S.W.3d 198, 204 (Tex. 2002) (citing Walling v. Metcalfe, 863 S.W.2d 56, 

57 (Tex.1993)). Whether to grant or deny a temporary injunction is within the trial 

court’s sound discretion. Id.

A temporary injunction is an extraordinary remedy and will not issue as a 

matter of right. Id. To obtain a temporary injunction, an applicant must plead 

and prove (1) a cause of action against the defendant; (2) a probable right to the 
5

relief sought; and (3) a probable, imminent, and irreparable injury in the interim. 

Id. A probable right of recovery is shown by alleging a cause of action and 

presenting evidence tending to sustain it. Frequent Flyer Depot, Inc. v. Am. 

Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied), 

cert. denied, 559 U.S. 1036 (2010). An injury is irreparable if damages would not 

adequately compensate the injured party or if they cannot be measured by any 

certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot,

281 S.W.3d at 220.

On appeal, we do not review the merits of the underlying case. Davis v. 

Huey, 571 S.W.2d 859, 861 (Tex. 1978). Instead, we determine only whether 

there has been an abuse of discretion by the trial court in granting or denying the 

relief. Id. at 861–62. Given the abuse of discretion standard, we review the 

evidence submitted to the trial court in the light most favorable to the court’s 

ruling, draw all legitimate inferences from the evidence, and defer to the trial 

court’s resolution of conflicting evidence. See IAC, Ltd. v. Bell Helicopter 

Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.—Fort Worth 2005, no pet.). A 

reviewing court will not reverse an order on a temporary injunction unless the trial 

court’s action was so arbitrary that it exceeded the bounds of reasonable 

discretion. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex. App.—

Houston [14th Dist.] 2004, no pet.). The trial court does not abuse its discretion 

when basing its decision concerning a temporary injunction on conflicting 

evidence, nor does it abuse its discretion when some evidence of substantive 
6

and probative character exists to support its decision. Wright v. Sport Supply 

Grp., Inc., 137 S.W.3d 289, 292 (Tex. App.—Beaumont 2004, no pet.).

Discussion

To obtain a temporary injunction, the Russells were required to show that 

they had a probable right to recovery on their trespass cause of action against 

the State and the County. See Frequent Flyer Depot, 281 S.W.3d at 220. A 

probable right of recovery is shown by alleging a cause of action and presenting 

evidence tending to sustain it. Argyle Indep. Sch. Dist. ex rel. Bd. of Trs. v. Wolf,

234 S.W.3d 229, 236 (Tex. App.—Fort Worth 2007, no pet.). But an applicant for 

a temporary injunction is not required to establish that it will ultimately prevail at 

trial. In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 

343, 345 (Tex. App.—Texarkana 1999, no pet.).

The State and the County claimed they were entitled to enter upon and 

take possession of the condemned property because they had deposited 

$18,336, the amount awarded by the special commissioners, into the registry of 

the court. See Tex. Prop. Code Ann. § 21.021(a)(2) (West 2014) (allowing the 

condemnor to take possession of the condemned property pending further 

litigation if the condemnor deposits with the court the amount of money awarded 

by the special commissioners). A condemnor that complies with property code 

section 21.021 is rightfully in possession of the property and cannot be guilty of 

trespass. See Ludewig v. Houston Pipeline Co., 773 S.W.2d 610, 615 (Tex. 

App.—Corpus Christi 1989, writ denied); Houston Lighting & Power Co. v. Klein 
7

Indep. Sch. Dist., 739 S.W.2d 508, 519 (Tex. App.—Houston [14th Dist.] 1987, 

writ denied). In their application for temporary injunction, the Russells asserted 

that neither the State nor the County were entitled to possession of or entry upon 

the condemned property under property code section 21.021 because (1) neither 

entity had power to exercise the right of eminent domain at the time the 

condemnation petition was filed and (2) the special commissioners did not have 

jurisdiction to make an award because they failed to properly set the hearing and 

serve notice of the hearing on the Russells. Therefore, the Russells argue, any 

entry by the State or the County would constitute a trespass.

Eminent Domain Authority

In their first issue, the Russells assert the County did not have eminent 

domain authority to condemn their property during the administrative phase of 

the proceeding because the City of Benbrook had not authorized the County to 

exercise the power of eminent domain for state highway purposes within its 

municipal limits. The Russells argue that Tarrant County’s lack of eminent 

domain authority during the administrative phase invalidates any actions taken 

during that phase, including the acquisition of their property and the special 

commissioners’ award. The Russells further argue that because the award was 

invalid, the State and the County were not entitled to possession of the 

condemned property under property code section 21.021. See Tex. Prop. Code 

Ann. § 21.021; see also In re Tex. Rice Land Partners, Ltd., 402 S.W.3d 334, 

339 (Tex. App.—Beaumont 2013, orig. proceeding [mand. denied]) (“Section 
8

21.021 allows a party with eminent domain authority to take possession of the 

condemned property, ‘pending the results of further litigation’ if that party . . . 

deposits the amount of the award into the registry of the court.” (quoting Tex. 

Prop. Code Ann. § 21.021)).

The commissioners court of a county may acquire by purchase or eminent 

domain any real property, including a right-of-way, that the Texas Transportation 

Commission determines is necessary or convenient to a state highway to be 

constructed, reconstructed, maintained, widened, straightened, or extended. 

Tex. Transp. Code Ann. § 224.003(a) (West 2011). The acquisition is on behalf 

of and with title to the State. Id. § 224.003(c) (West 2011). However, “[t]he 

commissioners court may exercise the power of eminent domain within the limits 

of a municipality only with the prior consent of the municipality’s governing body.” 

Id. § 224.003(d) (West 2011). The Russells argue that at the time the County 

conducted the administrative phase of the proceeding, it had not satisfied the 

consent requirement in section 224.003(d), and therefore, it could not exercise 

the power of eminent domain on their property. See id.

“A municipal governing body officially expresses itself through its official 

proceedings, as manifested in orders, resolutions, and minutes.” Whittington v. 

City of Austin, 174 S.W.3d 889, 900 (Tex. App.—Austin 2005, pet. denied) (citing 

Horton v. Mills Cnty., 468 S.W.2d 876, 878 (Tex. Civ. App.—Austin 1971, no 

writ)). At the temporary injunction hearing, the trial court admitted into evidence 

Resolution 2005-16 and minutes from the January 5, 2012 Benbrook City Council 
9

Meeting. The trial court also admitted into evidence Resolution No. 2014-03, 

which the Benbrook City Council passed at a regular meeting held April 17, 2014, 

four days prior to the temporary injunction hearing. The April 17, 2014 resolution 

stated in pertinent part as follows:

WHEREAS, by Resolution No. 2005-16 dated August 4, 2005, 

the Benbrook City Council resolved to fully support the inclusion of 

the widening of Benbrook Boulevard from I-20 to Winscott Road as 

part of the Tarrant County Transportation Bond program; and

WHEREAS, on January 5, 2012, the Benbrook City Council 

approved a Memorandum of Agreement among the City, Tarrant 

County, Regional Transportation Council and the Texas Department 

of Transportation outlining the commitments and responsibilities of 

these entities with respect to accomplishing the widening of 

Benbrook Boulevard from I-20 to Winscott Road, hereinafter referred 

to as “the Project;” and

. . . .

WHEREAS, the Minutes from the January 5, 2012, [sic] 

Benbrook City Council meeting reflect the City Council’s 

understanding that Tarrant County would assume responsibility for 

right-of-way acquisition for the Project; and

. . . . 

WHEREAS, the City Council has at all times consented to 

Tarrant County’s exercise of its power of eminent domain within the 

city limits of the City of Benbrook as necessary for acquisition of the 

right-of-way for the Project.

NOW, THEREFORE, BE IT RESOLVED, BY THE CITY OF 

BENBROOK, TEXAS:

That in order to alleviate any potential misunderstanding 

concerning the City Council’s prior understanding and consent to 

Tarrant County exercising its power of eminent domain associated 

with this Project, the City Council hereby expressly states and 

reaffirms its consent in accordance with Section 224.003(d) of the 
10

Texas Transportation Code, and ratifies any exercise of this power 

by Tarrant County for the Project prior to the date of this Resolution.

The State and the County assert that these three documents evidence the 

Benbrook City Council’s consent to the County exercising the power of eminent 

domain in Benbrook’s city limits. The Russells argue these documents do not 

demonstrate the city council’s consent because (1) Resolution 2005-16 does not 

mention who is going to acquire the property; (2) the minutes from the January 5, 

2012 city council meeting do not reflect that the city council voted to approve the 

memorandum of understanding; and (3) Resolution No. 2014-03 was passed 

after the State and the County filed their condemnation petition and the special

commissioners had made their award.

The property code permits a party with eminent domain authority that 

wants to acquire real property for public use to file a condemnation petition. See 

Tex. Prop. Code Ann. § 21.012(a) (West 2014). It further allows a party with 

eminent domain authority to take possession of the condemned property after the 

special commissioners have made an award, “pending the results of further 

litigation” if that party pays the property owner the amount of damages and costs 

awarded by the special commissioners or deposits the amount of the award into 

the registry of the court. See id. § 21.021. “The question whether the bringing of 

[a condemnation] suit was authorized is not jurisdictional, and if authorization is 
11

challenged, may be decided by the court in usual litigation procedures.”3 Lin v. 

Houston Cmty. Coll. Sys., 948 S.W.2d 328, 335 (Tex. App.—Amarillo 1997, writ 

denied). Viewing the evidence in the light most favorable to the court’s ruling and 

drawing all legitimate inferences from the evidence, we conclude that the 

evidence is sufficient to support the trial court’s implicit determination that the 

City of Benbrook had authorized the County to exercise its power of eminent 

domain within Benbrook’s city limits. See id. at 335 (holding college’s agents had 

authority to bring condemnation action under section 21.012 even though formal 

resolution authorizing condemnation action was not adopted until after the action 

was filed); cf. City of Bells v. Greater Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex. 

App.—Dallas 1990, writ denied) (holding that although ratification does not have 

a retroactive effect, a governing board can “again authorize actions which were 

previously authorized at an invalid meeting”). Accordingly, we overrule the 

Russells’ first issue.

Notice of the Hearing

In their second issue, the Russells contend the special commissioners 

failed to issue and serve notice of the June 26 hearing in accordance with

property code sections 21.015 and 21.016. See Tex. Prop. Code Ann. 

 

3

The Russells did not argue in their application for temporary injunction 

and do not argue on appeal that the City of Benbrook’s lack of consent deprived 

the trial court of jurisdiction. However, they do not concede that this alleged 

defect is not jurisdictional. They contend that it is jurisdictional but assert that 

“those arguments are reserved for another day.”
12

§§ 21.015, .016 (West 2014). The Russells argue that because notice of the 

June 26, 2013 hearing was never issued or served on them, the special 

commissioners did not have jurisdiction to make the condemnation award.

Condemnation proceedings begin when the condemnor files a petition with 

the appropriate trial court. Id. § 21.012(a). The judge of the court appoints three 

disinterested real property owners who reside in the county as special 

commissioners to assess the damages of the owner of the property being 

condemned. Id. § 21.014 (West 2014). The special commissioners then 

schedule a hearing and serve notice of the hearing on the parties. Id. §§ 21.015, 

.016. Property code section 21.015 expressly delegates to the special 

commissioners the authority and limited discretion to administer the time and 

place of hearings:

(a) The special commissioners in an eminent domain proceeding 

shall promptly schedule a hearing for the parties at the earliest 

practical time but may not schedule a hearing to assess damages 

before the 20th day after the date the special commissioners were 

appointed. . . . 

(b) After notice of the hearing has been served, the special 

commissioners shall hear the parties at the scheduled time and 

place or at any other time or place to which they may adjourn the 

hearing.

Id. § 21.015. Section 21.016(a) states that “[e]ach party in an eminent domain 

proceeding is entitled to written notice issued by the special commissioners 

informing the party of the time and place of the hearing.” Id. § 21.016(a). The 

notice must be served not later than twenty days before the hearing date, and a 
13

person competent to testify may serve the notice. Id. § 21.016(b). The notice 

may be served by delivering a copy of the notice to the party or the party’s agent 

or attorney. Id. § 21.016(d)(1). The notice may be served as prescribed by rule 

21a of the rules of civil procedure. State v. Bristol Hotel Asset Co., 65 S.W.3d 

638, 642 (Tex. 2001); see Tex. R. Civ. P. 21a. Unless notice has been properly 

served as provided in the statute, the special commissioners have no jurisdiction 

to assess damages or declare a condemnation of the property. Bristol Hotel 

Asset Co., 65 S.W.3d at 641.

The Russells concede they were properly served with written notice of the 

June 12, 2013 special commissioners’ hearing.4The special commissioners set 

the hearing for June 12, 2013, in the Board Room, Tarrant County Bar 

Association, 1315 Calhoun Street, Fort Worth, Texas. The record reflects the 

notice was served on the Russells through their attorney on May 6, 2013, at 

10:06 a.m. by Willie F. Ingram, a person competent to testify. This is prima facie 

evidence that the Russells were properly served with the notice of the hearing. 

See Bristol Hotel Asset Co., 65 S.W.3d at 642 (stating that return of service of 

notice of special commissioners’ hearing that strictly complies with section 

 

4

The special commissioners originally scheduled the hearing for May 1, 

2013. The Russells were not served with notice of the May 1 hearing until April 

17, 2013, which deprived them of the twenty-day notice required by property 

code section 21.016(b). See Tex. Prop. Code Ann. § 21.016(b). It appears that 

the hearing was rescheduled to June 12, 2013, to comply with this notice 

requirement.
14

21.016 is prima facie evidence that condemnee has been served with notice in 

compliance with the statute).

On June 7, 2013, the Russells filed a motion for continuance, requesting 

that the special commissioners reset the hearing for a later date because their 

appraiser was not able to complete his appraisal of the Russells’ property due to 

the death of his sister. The Russells’ counsel forwarded the motion for 

continuance to the special commissioners by email on June 7 and requested that 

the special commissioners contact him regarding their decision on the motion.

Later that day, the Russells’ counsel contacted the State and the County’s 

counsel by email, informing him that the special commissioners had agreed to 

continue the hearing: “The commissioners have agreed to reschedule the June 

12, 2013 commissioner’s [sic] hearing in the above referenced matter. Please 

provide our office with several dates that you, the State’s appraiser and any other 

attendees are available so that the hearing can be rescheduled within the next 30 

days.” Before the close of business on June 7, the special commissioners issued 

a ruling by email to the parties, stating that they agreed to conduct the hearing on 

June 26. On June 10, in response to an email from the State and the County’s 

counsel, one of the special commissioners confirmed in an email to the parties’ 

counsel that he was agreeable to resetting the hearing to June 26.

The Russells did not refute the evidence of proper service of notice of the

June 12 hearing. See id. (stating when evidence of proper service and return is 

introduced, condemnee must offer evidence it was not served to raise a fact 
15

issue). Moreover, the Russells admit notice of the June 12 hearing was properly 

served on them. They further admit they initiated the rescheduling of the June 12 

hearing and knew that the hearing had been rescheduled to June 26. On crossexamination during the temporary injunction hearing, Kenneth Russell testified 

that he chose not to appear at the hearing. The Russells’ attorney also stated on 

the record at the hearing, “We knew what date the hearing was going to be on. 

There’s no question about that.”

Jurisdiction vested with the special commissioners when the notice of the 

June 12 hearing was served. See Martin v. City of Rowlett, No. 05-07-00972-

CV, 2008 WL 5076629, at *2 (Tex. App.—Dallas Dec. 2, 2008, no pet.) (mem. 

op.). The fact that the time of the hearing changed did not divest the special 

commissioners of jurisdiction. See id. (holding that a change of the place of 

condemnation hearing after notice was properly served on condemnee did not 

divest special commissioners of jurisdiction); see also Flynt v. Garcia, 587 

S.W.2d 109, 109–10 (Tex. 1979) (“[W]here jurisdiction is once lawfully and 

properly acquired, no subsequent fact or event in the particular case serves to 

defeat that jurisdiction.”). Accordingly, we overrule the Russells’ second issue.
16

Conclusion

Having overruled both of the Russells’ issues, we conclude the trial court 

did not abuse its discretion by denying their application for temporary injunction. 

Therefore, we affirm the trial court’s order.

/s/ Anne Gardner

ANNE GARDNER

JUSTICE 

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: April 16, 2015