COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-042-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

----------

NO. 2-08-044-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

----------
2

NO. 2-08-046-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------

NO. 2-08-106-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

----------

NO. 2-08-107-CV

CLYDE L. GODFREY APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------
3

NO. 2-08-108-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------

NO. 2-08-109-CV

JAMES A. SHOEMAKER APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------

NO. 2-08-110-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

----------
4

NO. 2-08-111-CV

WALTER HUGH HERRINGTON APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------

NO. 2-08-113-CV

CHARLES W. SCOTT AND APPELLANTS

ANITA R. SCOTT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

----------

NO. 2-08-134-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------
5

NO. 2-08-135-CV

CHARLES W. SCOTT APPELLANTS

AND ANITA R. SCOTT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------

NO. 2-08-136-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------

NO. 2-08-137-CV

CLYDE L. GODFREY, AND APPELLANTS

WAYNE COBLE AND NANCY COBLE, 

TRUSTEEES OF THE WAYNE AND 

NANCY COBLE LIVING TRUST

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------
6

NO. 2-08-138-CV

CASCOTT, L.L.C. APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------

NO. 2-08-139-CV

WALTER HUGH HERRINGTON APPELLANT

V.

CITY OF ARLINGTON APPELLEE

----------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

----------

NO. 2-08-149-CV

WALTER HUGH HERRINGTON APPELLANT

V.

CITY OF ARLINGTON APPELLEE

------------

FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

------------
1... Tex. Loc. Gov’t Code Ann. § 334.021(a) (Vernon 2005).

7

OPINION

------------

In this consolidated appeal involving the City of Arlington’s exercise of

eminent domain to obtain land for a stadium venue project, seventeen property

owners argue in a single issue that the trial court erred in granting a partial

summary judgment that the City properly invoked its authority to condemn their

properties. We affirm.

I. Background

 In 2004, the City and the Dallas Cowboys negotiated a “Master

Agreement” detailing the basic terms by which the City would become the site

of a new sports stadium complex. That August, the Arlington City Council

passed Resolution No. 04-358, which designated the sports stadium project a

“venue project” under Chapter 334 of the Local Government Code and

established how the project would be financed. Section 334.021(a) of the

Local Government Code allows for certain municipalities, including the City, to

“provide for the planning, acquisition, establishment, development,

construction, or renovation of a venue project.”1 The code defines “venue” to

include “an arena, coliseum, stadium, or other type of area or facility . . . that

is used or is planned for use for one or more professional or amateur sports
2... Id. § 334.001(4)(A)(i).

3... See id. § 334.021 (detailing procedure for developing venue project).

4... See id. § 334.021(a)(3) (providing voter approval required for venue

project).

8

events . . . .”2 Resolution 04-358 declared that this venue project shall be

“known as ‘The Dallas Cowboys Complex Development Project.’”

After passage of Resolution No. 04-358, the City and the Cowboys

executed the Master Agreement and obtained approval for the project from the

Texas Comptroller.3 The City Council then called a special election for

November 2, 2004, to allow qualified voters to approve or disapprove the

Dallas Cowboys Complex Development Project.4 The proposition presented to

the voters (1) described the purpose of the project as planning, acquisition,

establishment, development, construction, and financing of a multi-purpose and

multiple-function stadium project to be primarily used as the site for Cowboys

home games, and (2) detailed the methods for financing the project, including

imposition of additional City taxes on sales, vehicle rentals, hotel occupancy,

and admission to and parking at venue project events. A majority of voters

approved the project.

The City and the Cowboys then proceeded to negotiate various contracts

contemplated by the Master Agreement, including a lease agreement (the
5... See Tex. Prop. Code Ann. § 21.001 (Vernon 2004) (“District courts

and county courts at law have concurrent jurisdiction in eminent domain

cases.”); id. § 21.012 (Vernon Supp. 2008) (describing procedure for filing and

required contents of condemnation petition).

6... See id. § 21.015 (Vernon 2004) (describing responsibilities of special

commissioners in condemnation proceedings).

9

“Lease”) that sets out the terms of the Cowboys’ future use of the stadium

facilities.

In mid-2005, the City Council publicly identified the location for the

project and passed resolutions authorizing City representatives to negotiate the

purchases of property within the proposed location. While some of these

negotiations were successful, the City and some property owners could not

reach agreements on the City’s purchase of their properties. The City then

initiated condemnation proceedings in the county court at law against those

property owners.5

The City conducted hearings before special commissioners who issued

awards that were subsequently filed in the condemnation proceedings.6 The

property owners both objected to the amounts of the awards and filed pleas to

the jurisdiction challenging the propriety of the City’s exercise of eminent

domain. 

The property owners and the City then filed competing motions for

summary judgment regarding the propriety of the City’s exercise of eminent
7... Our consolidation order stated that “[e]ach appeal shall continue to

bear its respective cause number.”

8... See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005); Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005).

9... See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59,

60 (Tex. 1986).

10... See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143

S.W.3d 794, 798 (Tex. 2004).

10

domain. The trial court granted the City’s motion and denied the property

owners’ motion and pleas.

The parties proceeded to trial on the property owners’ objections to the

amounts of the awards. After these trials, the trial court entered final

judgments as to each property owner’s compensation. The property owners

each appealed, and this court consolidated the appeals.7

II. Standard of Review

We review a summary judgment de novo.8 A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim.9 When reviewing a summary judgment, we take as true

all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.10

When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both
11... See Valence Operating Co., 164 S.W.3d at 661.

12... See id.

13... See Tex. Loc. Gov’t Code Ann. § 251.001(a)(5) (Vernon 2005)

(stating that a municipality “may exercise the right of eminent domain for a

public purpose to acquire public or private property . . . for any . . . municipal

purpose the governing body considers advisable”).

11

parties’ summary judgment evidence and determine all questions presented.11

The reviewing court should render the judgment that the trial court should have

rendered.12

III. The Parties’ Arguments

The property owners allege that the condemnation and the Lease are

unconstitutional under section 17 of article I of the Texas Constitution because

they result in the grant of an unlimited special privilege to a private entity and

that the City’s actions in condemning the property and executing the Lease

were in violation of section 251.001(a)(5) of the Local Government Code

because neither action was for a “public purpose.”13 Specifically, the property

owners contend that the condemnation proceedings were not for a public

purpose because “the sole reason [for the condemnation proceedings] was to

lease [the property] to the Dallas Cowboys under terms that divested the City

of its exclusive use and right to manage and control the condemned property

for a specific period of at least thirty (30) years.” They do not challenge the
14... See, e.g., Seureau v. ExxonMobil Corp., No. 14-07-00176-CV, 2008

WL 4584961, at *2 (Tex. App.—Houston [14th Dist.] Oct. 16, 2008, no pet.)

(“Because standing is a threshold issue that is implicit in the concept of

subject-matter jurisdiction, we first address Father's standing.”); Ins. Network

of Tex. v. Kloesel, 266 S.W.3d 456, 463 (Tex. App.—Corpus Christi 2008,

pet. denied) (same).

12

amount of the condemnation awards or assert any irregularity in the

condemnation proceedings themselves.

In response, the City asserts that the property owners lack standing to

challenge the constitutionality of the Lease. Alternatively, the City contends

that the condemnation was for a public purpose—to acquire land to build a

venue project for professional and amateur sporting events—and that the Lease

is a lawful means of accomplishing this public purpose under chapter 334 of the

Local Government Code, which expressly authorizes municipalities to acquire

land for lease as part of a venue project.

IV. Analysis

A. Standing

Before we reach the merits of the parties’ arguments, we must address

the threshold issue raised by the City regarding standing.14 Specifically, the

City asserts that the property owners lack standing to challenge the legality of

the Lease because they failed to show any particularized injury resulting from
15... See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984); Wyly v.

Preservation Dallas, 165 S.W.3d 460, 464 (Tex. App.—Dallas 2005, no pet.).

16... See Wyly, 165 S.W.3d at 464 (“Generally, to establish standing, a

plaintiff must establish that he has an individual interest in a conflict that is

distinct from the interest of the general public, such that the defendant's

actions have caused the plaintiff particular injury.”).

17... See Tex. Const. art. I § 17, interpretive commentary (“[T]he

legislative branch may delegate the power to such agencies as it believes

proper, subject, of course, to constitutional limitations.”).

13

the Lease that is distinct from the Lease’s impact on the general public.15 The

property owners, however, are not merely challenging the constitutionality of

the Lease; they also assert that it was unconstitutional for the City to condemn

their property for the purpose of entering into the Lease. These two arguments

are intertwined. Because the property owners’ interest in the propriety of the

proceedings condemning their property is unquestionably distinct from the

general public’s, we hold that the property owners do have standing to

challenge the condemnations of their property based on the theory that the

condemnations were for the purpose of leasing the property in violation of the

Texas Constitution.16

B. Condemnation

The City’s eminent domain power derives from a grant of power by the

state legislature.17 Section 251.001(a)(5) of the Local Government Code

provides broad authority to the City to condemn private property “for any . . .
18... Tex. Loc. Gov’t Code Ann. § 251.001(a)(5).

19... Tex. Const. art. I § 17 (emphasis added); see Whittington v. City of

Austin, 174 S.W.3d 889, 896–97 (Tex. App.—Austin 2005, pet. denied).

20... Tex. Const. art. I § 17, interpretive commentary; see Hawaii Housing

Auth. v. Midkiff, 467 U.S. 229, 245, 104 S. Ct. 2321, 2331 (1984)

(explaining that “purely private [taking] . . . executed for no reason other than

to confer a private benefit on a particular private party” would be

unconstitutional); Phillips v. Naumann, 154 Tex. 153, 158, 275 S.W.2d 464,

467 (1955) (holding unconstitutional order directing opening of roadway

because would be “for the use of [one private person], and for no other use”);

see also City of Arlington v. Golddust Twins Realty Corp., 41 F.3d 960, 965

(5th Cir. 1994) (in case involving exercise of eminent domain to construct

parking lot for new stadium for Texas Rangers baseball team, stating that

property may be taken through eminent domain when “there results to the

public some definite right or use in the business or undertaking to which the

property is devoted”) (internal quotation omitted).

21... See Maher v. Lasater, 163 Tex. 356, 359, 354 S.W.2d 923, 924

(1962) (“[T]he ultimate question of whether a particular use is a public use is

a judicial question to be decided by the courts.”); Whittington, 174 S.W.3d at

14

municipal purpose the governing body considers advisable.”18 This power is

limited in Texas by the requirement in section 17 of article I of the Texas

Constitution that,

No person's property shall be taken, damaged or destroyed for or

applied to public use without adequate compensation being made,

unless by the consent of such person . . . .

19

“[I]f private property is taken for a purely private purpose, Section 17 is

violated.”20

Whether a particular use of property constitutes a public use or purpose

is a question of law to be decided by the courts.21 In determining this question,
897. Public use and public purpose are essentially synonymous and are often

used interchangeably in Texas condemnation law. See Davis v. City of

Lubbock, 160 Tex. 38, 52, 326 S.W.2d 699, 709 (1959) (“The words ‘public

purposes’ are no narrower than the words ‘public use’ . . . . Since we have

held property is taken for public use, it follows that the expenditure of funds on

the same project would be for public purposes.”).

22... See City of Dallas v. Higginbotham, 135 Tex. 158, 168, 143 S.W.2d

79, 85 (1940) (holding that state legislature “validly confer[s]” eminent domain

power where “the purposes [for condemnation] [a]re affected with a public

interest”).

23... FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255

S.W.3d 619, 629 (Tex. 2008).

24... Tex. Local Gov’t Code Ann. §§ 334.001(5) and 334.021(a). The

Local Government Code defines a “sports and community venue project” to

mean “a venue and related infrastructure that is planned, acquired, established,

developed, constructed, or renovated under [chapter 334].” Id. According to

the resolutions by which the City proceeded against each property owner, the

City initiated the condemnation proceedings “to acquire . . . certain parcel[s] of

land for the purpose of developing the Dallas Cowboys Public Venue Complex

15

however, courts give presumptive effect to legislative declarations that a

statutorily authorized use of property is for a public purpose.22 As the Supreme

Court of Texas recently stated, “[T]he [legislative] determination of public

necessity is presumptively correct, absent proof by the landowner of the

[condemning authority’s] fraud or proof that the condemning authority acted

arbitrarily or capriciously.”23

In this case, the City predicated the condemnation actions on chapter 334

of the Local Government Code, which authorizes the City to plan and develop

a “sports and community venue project.”24 Section 334.044(a) declares that
Project for use as a public venue.”

25... Id. § 334.044(a).

26... See FKM P’ship, 255 S.W.3d at 629; see also Coastal Indus. Water

Auth. v. Celanese Corp. of Am., 592 S.W.2d 597, 600 (Tex. 1979) (“In the

absence of allegations that the condemnor acted arbitrarily or unjustly, the

legislature’s declaration that a specific exercise of eminent domain is for public

use is conclusive.”).

16

“an approved venue project is owned, used, and held for public purposes by the

municipality or county.”25 Thus, in the absence of proof that the City acted

fraudulently, arbitrarily, or capriciously, we must presume that the legislature’s

declaration in Chapter 334 that such a sports venue project is for a public

purpose is correct.26

The property owners have presented no evidence that the City acted

fraudulently, arbitrarily, or capriciously in condemning their property or

executing the Lease. Nevertheless, the property owners contend that the

sports venue project in this case is not for a public purpose because the Lease

grants the Dallas Cowboys “exclusive use and right to manage and control the

condemned property for . . . at least thirty (30) years.”

Unquestionably, the Dallas Cowboys stand to reap substantial benefits

from the project, including the Lease. The mere fact that a private actor will

benefit from a taking of property for public use, however, does not transform
27... See Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 179,

309 S.W.2d 828, 833 (1958) (holding that fact that “[private] lessee may

make a profit out of the venture . . . in itself does not make the use private

rather than public”); see also State v. Unified Gov’t of Wyandotte

County/Kansas City, Kansas, 962 P.2d 543, 554 (Kan. 1998) (holding that

“development of [an] auto race track facility and related projects are valid public

purposes for which . . . eminent domain authority [may be] exercised”);

Libertarian Party of Wis. v. State, 546 N.W.2d 424, 435 (Wis. 1996) (“While

some private benefit [to a professional baseball team] will result [from

construction and operation of professional baseball park facilities], the project

is sufficiently public in nature to withstand constitutional challenge.”); Ragsdale

v. City of Memphis, 70 S.W.3d 56, 72 (Tenn. Ct. App. 2001) (“Although . . .

there will be some benefit accruing to [an] NBA franchise [by city’s financing

and construction of sports arena], if a public purpose is established, the fact

that a private entity may receive some benefit from the legislation does not

invalidate the established public purpose.”); Schreiner v. City of Spokane, 874

P.2d 883, 887 (Wash. Ct. App. 1994) (holding that City was authorized to

condemn, then lease, land for multi-purpose community center, which included

sports arena). See generally, Aaron Mensh, “Upon Further Review”: Why a

Sports Stadium Can Justify an Eminent Domain Taking, 40 Conn. L. Rev. 1623,

1653 (2008) (identifying numerous public purposes for stadiums. But see City

of Springfield v. Dreison Invs., Nos. 19991318, 991230, 000014, 2000 WL

782971, at *1, *50 (Mass. Super. Ct., Feb. 25, 2000) (under unique

Massachusetts law, rejecting use of eminent domain for purpose of

construction of minor league baseball stadium).

28... See Goldstein v. Pataki, 516 F.3d 50, 64 (2d Cir. 2008), cert.

denied, 128 S. Ct. 2964 (2008) (upholding use of eminent domain where

condemnation, among other things, will “result in the construction of a publicly

owned (albeit generously leased) stadium”).

17

the purpose of the taking of the property, or the means used to implement that

purpose, from a public to a private use.27

The question here is not whether the Dallas Cowboys will benefit from

the Lease,28 but whether the Lease furthers and promotes the public purpose
29... See Coastal States, 158 Tex. at 179, 309 S.W.2d at 833 (holding

that public purpose is advanced when “the public has a direct, tangible and

substantial interest and right in the undertaking”); see also Tex. Const. art. I §

17, interpretive commentary (noting that courts do not interfere with legislative

declaration of public purpose where “the legislature could reasonably have

considered the use a public one”).

30... The case on which the property owners primarily rely, River Rd.

Neighborhood Ass’n v. S. Tex. Sports, 720 S.W.2d 551 (Tex. App.—San

Antonio 1986, writ dism’d), is inapposite. It does not involve the exercise of

eminent domain power by a municipality and, unlike the sports venue project

at issue here, there was no indication in River Road that the stadium lease was

part of a project that the legislature declared to be for public purpose. See Tex.

Loc. Gov’t Code Ann. § 334.044(a).

18

of the venue project for which the condemnation proceedings were instituted.29

We hold that it does. The City’s summary judgment evidence conclusively

establishes that the Lease will further the project’s public purpose. We,

therefore, hold that under the facts of this case, the Lease at issue does not

serve a purely private purpose in violation of section 17 of article I of the Texas

Constitution.30

V. Conclusion

Because we hold that the City established, as a matter of law, that the

condemnation proceedings and lease were for a public purpose, we affirm the

trial court’s judgments.

JOHN CAYCE

CHIEF JUSTICE

PANEL: CAYCE, C.J.; GARDNER and MCCOY, JJ.

DELIVERED: February 19, 2009