Opinion issued September 16, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 20
- 00039
- CV

——————————— LARRY AND SHE L I A BALL , App ella nt s

V. THE CI T Y OF PEARLAND , Appell e e
On Appeal from the 412th Judicial District Court

B razoria County, Texas Trial Court Ca se No. 104288
- CV

MEMORANDUM OPINION Larry and She l i a Ball appeal from the trial court ’ s order granting the City of
P earlan d ’ s mot ion to di s miss under Texas Rule of Civil Procedure 91a

. In the trial court, the Balls sou ght a declaration that they had a right to repu rchase pr operty that
was t aken pursuant to the City ’ s power of eminent domain in 2002. Th e y argued that2

a s tatute ena cted in 2003 , which provides a limited right to repurchase property taken for pu blic use , sh ould apply retroactively to them. Th ey maintained that the failure to apply the later

- en acted statute retro actively to their situation deprived them of du e
pr ocess under the United States and Texas C o nstit utions. Finally, they asserted that they possessed a rem aining ownership interest in the property. The trial court rejected these arguments , finding the entire lawsuit to be baseless. We agree that the Ba lls ’ lawsuit is baseless in law and fact because the later

e nacted statute does not apply retroactivel y and because th e Balls have no remaining interest in the surface estate of the land that was the su bject of the 2002 taking. We affirm. Background Larry and She l i a Ball owne d a 5.549

- acre tract of land in Brazoria C ounty ( the

“ property ” )

. A r ound 2000, t he City of Pearland ( the “ City ” ) filed suit to acquire the property by eminent domain “ to be used for construction and connection of public safe ty facilit ie s and other re lated uses ” as authorized by Article 11, Section 5 of the Texas Constitution. The Balls and the City of Pear land settled. The City agreed to pay $625,000 in just compensation, and the trial court entered an agreed final judgment on Oc tober 25, 2002

. The agreed final judgment rec ited the procedural history and the parties ’ stipulatio ns. The de cretal language provided, in relevant part: It is therefore,3 ORDERED that the 5.549 acres described in Exhibit “ A ” , Plaintiff, City , is hereby vested with fee simple title and that fee simple title to thi s property is hereby divested out of Defe ndants, Ba ll. It is , further, OR DERED that the fee simple title to the 5.54 9 acres described in Exhibit “ A ” is decreed to and vested in Plaint iff, City, p rovided, however, there is exclude d from the estate vested in Plai ntiff, City, and reserved to Defenda nts, Ball, any interest which they may have in all oil, gas , sulfur and other minerals under the fee simple title provided, however, that the Defendants, Ball, shall not be permitted to explore, develop, drill, mine, operate or produce for such oil, gas, s ulfur and other minerals on the surface of the fee simple title, but will be permitted to extract oil, gas, sulfur and other minerals from and under the 5.549 acres by dire ctional drilling or other means outside the boundaries of the 5.549 acres. It is , fu rther, ORD ERED that Defendants, Ball, have and recover of and from P laintiff, City, the sum of SIX HUNDRED TWENTY

- FIVE THOUSAND TWO HUNDRED EI GHTY

- SIX DOLLARS ( $6 2 5,286.00).

. . . . In 2003, the Texas Legislature ena cted legislation that provide d , under certain cir c umstances, a mechanism for the repurch ase of property taken through eminent domai n . 1 The statut e , subchapter E of the Tex as Property Code, allows the person
from whom real property w as acquired by eminent domain for a public use to
repurc hase the property if the public use for which it was a cquired was cance led before such use, no progr ess was made toward that public use wit hin ten years of the

1 See T EX
. P ROP

. C ODE §§ 21.101

– . 103.4

date of acquisition, or within ten years of ac quisition, the property is no longer needed for su ch use or for a s u b stantially similar one. 2
I n 2019 , the Balls requested information regarding the status and progress of the property ’ s publi c u se. In August 2019, they filed suit seeking a declar atory judgment that the intended public use of the property was canceled, t h at subchapter
E of th e Property Code applies, and that they have the right to repu rchase the property. Th e C ity filed special exceptions argu ing that the Legislature expressly made su bchapter E effective only as to acquisitions of property after January 1 , 2004. The Balls amended their petition to seek a declaration that th e City did not t ake the property “ in fee simple uncondition al. ” The City again speci ally excepted arguing tha t subchapter E does not apply re troactively and that it took ownership wi thou t conditions and with a reservation of mineral rights to the Balls

. Th e trial court granted the special exceptions and ordered the Balls to amend their petition by
N ove mber 22, 2019. Before the deadline for the B alls to file their second amende d petition , the City of Pearland filed a mo tio n to di smiss the Balls ’ cas e under Texas Rule of Civil Procedure 91 a because it was baseless in law or fact

. The City argued that the Legislature expressly made sub chapt er E appl y prospectively , and it did not apply
to the acqui sition of the Balls ’ property in 2002. T he C ity also argued that the agreed

2 See id. § 21.101 (a ).5

final judgment in cluded no c onditio ns or possibility of reverter and t hat the Balls had no right to repurchase the property.
T he Balls ’ live pleading at the time of the tria l cour t ’ s ruling alleged: (1) the City did not ta ke the property “ fee simple unconditional ” ; (2) finding only prospective application of su bc hapter E based on legislative in tent would deprive
the m of due process under the U nited States and Texas consti t uti ons ; a nd (3) they are entitl ed to t he property under a theory of reve rsion because the property was never used “ for construction and connecti on of public safe ty facili ties and other related uses. ” In response to the second amended p etition, the City a ssert ed tha t there
is no constit utional ri ght to repu rchase prope rty taken pursuant to emin ent doma in and for which a property owner was justly co mpe nsat ed

. It also argued that the Balls had previously agreed that they received just compensation in the 200 2 agr eed ju dgment. In December 2019, the trial court dismissed the entire suit with prejudice, and the Balls appealed. Analysi s On app eal, the Balls contend that the court erred by granting the motion to dismiss. First, they argue that the City acquired t he proper ty subject to the condition that the propert y be p ut to a public use. Se cond, they ar gue th at they have a constitutional right to repu rchase the property because the City failed to use i t for a6

public use for m ore than 17 years. They maintain th at th eir ex clusion from the subchapter E repurchase program deprived them of “ just compensation. ” Third, they
argue that th ey have “ a future interest, whether reversionary or otherwise , in the property. ”
I . Standard of review
Rule 91a allows a party to m ove f or ear l y dismissal of a cause of action on the grounds that it has no basis in law or fact

. T EX
. R

. A PP
. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as true, together wit h inferences reasonably drawn from them, do not en title the c laimant to the reli e f sought. ” Id. “A

c ause of action has no basis in fact if no reasonable person could believ e the facts pleaded. ” Id. We review a trial court ’s dismissal under Rule 91a de novo

. Walker v. Owens , 492 S.W.3d 787, 789 (Tex. App.

— Houst on [1s t Dist.] 2016, no pet.)

.

“ An agreed judgment has the same effect as any court judgment

. ” Gulf Ins.
Co. v. Burns Motors, Inc. , 22 S.W.3d 417, 422 (Tex. 2000)

. “ An agreed judgment should be construed in the same manner as a contract

. ” Id. W e consi der t he ent ire agreed judgment , and we construe it in a manner that renders none of the provisions meaningless. Id.
II. F ee simple , surface, and mineral esta tes

“ An estate in land that is conveyed or devised is a fee simple unless the estate is limited by expr ess wo rd s or unless a lesser estate is conveyed or devised by7

construction or operation of law. ” T EX
. P ROP
. C ODE § 5.0 01 (a). Generally, when the
term “fee simple title ” is applied to “land , ” it means “the absolute and indefeasible ownership of everyth ing f rom th e top of the ground to the center of the earth. ” C ty
. Sch. Trustees of Upshur C ty
. v. Free , 154 S.W.2d 935, 937 (Tex. Civ. App.

— Texarkana 1941, writ ref’d w .o.m .)

. “ An instrument conveying land in fee simple
transfers both the surface estate an d all minera ls and mineral rights, unless the instrument contains a reservation or expresses a contrary intention. ” Hysaw v. Dawkins , 483 S.W.3d 1, 8 (Tex. 2016)

. “ Texas law has always recognized that a lando wner may sever the mineral and surface estates a nd con vey th em separately

. ” Coyote Lake Ranch, LLC v. City of Lubbock , 498 S.W.3d 53, 60 ( Tex. 2016)

. “ A grantor may withhol d for itself a part of its estate

. . . by granting the entire estate but reserving the portion it desires to retain

. . . . ” Piranh a Part ners v . Neuhoff

, 596 S.W.3d 740, 748 (Tex. 2020)

.

“ A governmental unit exercises its power of eminent domain throug h the process referred to as condemnation. ” Burris v. Metro. Transit Auth. of Harris C ty
. , 266 S.W.3d 16, 19 (Tex. App.

— Houston [1st Di st.] 2 008, n o pet.)

. “ Condemnation is the formal process by which private property is taken for a public use without the

owner ’ s consent, but on the paymen t of adequate compensation. ” San Jacin to River Auth. v. Medina , 19

- 0400, 2021 WL 1432227, at *4 (Tex. Apr. 16, 20 21)

. E minent d oma in and condemnation procedures are governed by chapter 21 of the Texas8

Property Code. See T E X
. P ROP
. C ODE §§ 21. 001

– .103

. “ [T]he powers gra nted to condemn land are limited to the amount of property reasonably necessary for the public use. ” 3 King v. Harris C ty
. Flood Control Dist. , 210 S.W.2d 438, 441 (Tex. Civ. App.

— Galveston 1948, writ ref’d n.r .e.)

.

3 Ordinarily, an d “ [e]xcept where otherwise provided by law, the interest acquired by a cond emnor unde r this chapter does not include the fee simple t itle to real property, either pu blic or private. ” T EX
. P ROP

. C ODE § 21.045

. Art icle 3270, which was the p redec essor to section 21.045 , has been construed as a codification of the gener al rule limiting the amou nt of property taken for public us e : We are not unmindful of the provisions of Article 3270, Vernon ’ s Ann. Civ. Stats., which is a part of the statutory provisions relating to the subject of Eminent Domain (Title 52). This article provides that ‘except wh ere otherwise expressly provided b y law, the right secured (under the power of emi nent domain) shall not be so construed as to include the fee simple estate in lands.’ As stated in Texas Jurisprudence, ‘this enactment is but an enunciation of the general rule, obtaining even in the absenc e of s tatute, that the condemnation of property for a public use divests its owner of no righ t further than is necessary for the purpose for which the condemnation was authorized.’ 16 Tex. Jur. 679. Meaney v. Nueces C ty
. Nav. Dist. No. 1 , 222 S.W.2d 402, 4 07 (T ex. Civ. App.

— San Antonio 1949, writ re f’d) . Here, the City of Pearland did not acquire by c ondemnation fee simple title to the entire 5.549

- acre tract of land because the agreed final judgment reserved to the Balls certain mineral rights. Moreover, t he Ba lls did not argue in the trial court or in this court that their rights were affected i n any way by section 21.045. See T EX
. P ROP

. C ODE § 21.045.9

I I I. Pearland acquired unconditional rights to the surface estate of the propert y . I n 2002, the Balls entered into an agreed fin al jud gment regarding the property. In the judgment, the court recited the procedural history

. The second
p aragr aph of the judgment states: Plaintiff, City filed this proceeding to acqui re fee simple title to the land, and all impro vements located thereon, of a 5.549 acre tract of land ( t he “ Property ” ) more particularly d escribed in Exhibit “ A ” , for the purpose of acquiring property to be use d for construction and c onnection of public saf

ety faci lities and other related use s by Article 11, Section 5 of the Texas Consti tution. (Emph asis added.) The court also recited ten factual statements to which the parties stipulated. Based in part on the stipulations, the court con cluded that it had jurisd iction. The court then decreed: It is therefore, ORDERED that the 5. 549 ac res described in Exhibit “A ”, Plaintiff, City, is hereby vested with fee simple title and that fee simple title to thi s property is hereby divested out of Defe ndants, Ball. It is , further, OR DERED that the fee simple title to the 5.54 9 acres de scribe d in E xhibit “A ” is decreed to and vested in Plaintiff, City, p rovided, ho wever, there is exclude d from the estate vested in Plai ntiff, City, and reserve d to Defendants, Ball, any interest which they may have in all oil, gas , sulfur and other mineral s unde r the fee simple title provided, however, that the Defendants, Ball, shall not be permitted to explore, develop, drill, mine, operate or produce for such oil, gas, sulfur and other minerals on the surface of the fee simple title, but will be permitte d to e xtract oil, gas, sulfur and other minerals from and under10

the 5.549 acres by dire ctional drilling or other means outside the boundaries of the 5.549 acre s. It is , further, ORDERED that Defendants, Ball, have and recover of and from P laintiff, City, t he sum of SI X HUNDRED TWENTY

- FIVE THOUSAND TWO HUNDRED EIGHTY

- SIX DOLLARS ( $6 2 5, 286.00).

. . . . The Balls contend on appeal that the statement of pur pose at the beginning of the judgment is a condition on the use of the property. The City of Pearland a r gues th at the statemen t of purpose was a recital, not a condition. We agr ee with the City. A recital is “an account or d escription of some fac t or thing

. ” Recital , B LACK ’ S L AW D ICTIONARY (11 th ed. 2019) ; see Griffith Techs., Inc. v. Packers Plus Energy
Se r v s . (US A), I n c. , No. 01

- 17

- 00097

- CV, 2017 WL 6759200, at *4 (Tex. App.

— Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.) ( “ A recital in a contrac t acts as the formal statement establishing the reason for the transaction. ”). “ Recitations preceding t he decreta l port ion of a judgment are not a part of the rendered judgment. ” Pye ’ s Auto Sales, Inc. v. Gulf States Fin. Co. , No. 01

- 05

- 00670

- CV, 2007 WL
1 559933, at *4 (Tex. App.

— Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.) ;

see Goode v. Avis Rent

– A

– C ar, Inc

. , 832 S.W.2d 202, 203 (Tex. App.

— Houston [1st Dist.] 1992, writ denied) ( “ The validity of summary judgment does not rest in , nor is it control led or qualified by, the recitals, it is only decretal portion of judgment that operates as an adjudicatio n of th e caus e. ” ) ; Ellis v. Mortgage & Trust, Inc. , 75111

S.W.2d 721, 72 4 (Tex

. App.

— Fort Worth 1988, no writ) ( “ The recitations pre ceding the decretal porti on of the written instrument do not suffice to complete the rendition of the judgment.

. . . Although reason s and findings are proper inclusions in a judgment, the reasons given form no part of the judgment rendered. ” ) ; see also State v. Brownlow , 319 S.W.3d 649, 653 (Tex. 2010) ( “ Express decretal language in a judgment con trols over recitals. ” )

. The stat ement o f pu rp ose precedes th e dec retal language of the agreed judgment, and it forms no part of the judgment rend ered. See Pye ’ s Auto Sales , 2007
WL 1 559933, at *4

. The agreed judgment res erved mineral rights to th e Balls, and it expressly ordere d that the City t ake “ f ee simple title ” to the 5.549

- acre tra ct. Thus, fee simple titl e to the surface estate vested in the City of Pearland. See Piranha
Partners , 596 S.W.3d at 748 ; Coyote Lake Ranch , 498 S.W.3d at 60 ; Hysaw , 483 S.W.3d at 8

. The agreed final judgment did not r eserve or retain for the Balls any property rights to the su rface estate . It did not include any provi sion for the Balls to

r epurchase the property taken by the City. C onstruing the agreed final jud gment as written, w e conclude that the City ’ s owners hip of the surface estate was unconditional. See Gulf Ins. Co. , 22 S.W.3d at 422

. Relying on El Dorado La nd Co., L.P. v. City of McKinney , 395 S.W.3d 798 (Tex. 2012), t he Balls further argue that they possess a future inte rest in the property. El Dorado L and Co mpany sold property to t he City of Mc Kinney to be used for a12

public park. 395 S.W.3d at 799. The special war ranty deed conveying the land to the city expressly included two conditions: (1) “ the conveya nce was ‘ subje ct to the requirement and restricti on tha t the property shall be used only as a Community Park , ” and (2) “ [ i ]f the city de cided not to use the proper ty for that purpose , the deed further granted El Dorado the right to purchase the property. ” I d. As we have

e xplained, th e 2002 agreed judgmen t did not include an y conditio ns on the conveyance to the City of Pearland. It did not expressly give the Balls an y right to repurchase the property. W e conclude that the Balls possess no future interest in the

s urface esta te of the property. III. The Ball s are not entitled to repurchase the propert y under the Property C ode . The Balls assert that they should be permitt ed to repurchase the property in accordance with subchapter E of chapter 21 of the T e xas Prop erty Code. The y make several arguments , none of which are mer itorious. First, the Balls argue that they have a common law vested interest in the
p roperty that would entitle them to repurchase the p roperty un der a retroactive application of subchapter E. We have explai ned that the Balls retained only a mine ral
interest in the property by vi rtue of the 2002 agreed ju dgment

. Fe e simple title to the

s urface estate of the property vested in the City of Pearland, a nd the Balls possess no present or future right s in the prope rty , aside from the mineral right s.13

N ext, the Balls make severa l arguments in support of retroact ive applic ation of su bchapter E. T hey argue that the court has the ability to apply su b chapter E retroactively because the only indication of prospective app lication is mere legisl ative int e nt and the constitu tional prohibition against ex post facto laws d oes not ap ply. They also ad vocate for retroactive application under equitable principles.
When a statute is clear and una mbiguous, we must appl y its words ac cording to their common meaning

. 4 Hegar v. Am. Multi

- Cinema, Inc. , 605 S.W.3d 35, 4 0

– 4 1 (Tex. 2020)

. The Legislature unambiguously made subchapter E ef fecti ve on J anuary 1, 2004 , and prospective in application. See Act of June 1, 2003 , 78th Le g., R.S., ch

. 1307, § § 1

–

4, 2003 Tex. Sess. La w Serv . Ch. 1307

. When it enacted s ubchapter E of chapter 21 of the Property Code , the Legislature expressly provided that the statute would take effect on January 1, 2004, and that it would apply prospectively only, not r e troactive ly. Id. The Act “relatin g

4 The “ General and Special Laws of Texas ” is the official publi catio n of the l a ws enacted by the Texas L egisl ature and certified by the Secretary of State

. See T EX
. C ONST

. art . III, § 43 (a) ( “ The Le gislature shall p rovide for revising, digesting and publ ishing the laws, civil and c riminal . . . . ” ); T EX
. C ONST

. art. IV, § 2 1 ( “ He [t he secretary of state] sh a ll au thenticate the publicat ion of the laws . . .

. ” ); Murphy v. State , 95 S.W.3d 317, 321 n.4 (Tex. App.

— Houst on [1st Dist.] 2002, pet. denied ) ( “ Othe r than the publication of the session laws , Texas does not publish an official s et of its laws similar t o the United States Code. ” ) ; https://lrl.texas.gov/collections/sessionlaws.cfm (last accessed Aug. 2 , 2021 ) ( “ Th e G eneral and Special Laws of Texas, of ten referred to as the ‘ session laws, ’ constitut e a complete set of all b ills pa ssed into law by ea ch ses s ion o f the Texas Legislature. The Secretary of State assigns each Act a chapter number. Following each legislat ive session, the Acts are arranged in c hapter

- number order and are published as a bou nd set. ” ).14

to t he repurchase of real property acquired by a governm en tal entity through eminent domain ” provide s : SECTION 2: Chapter 21, Property Code, is amended by adding Subch apter E to read as follows

. . . . S ECTION 3. ( a) Su b chapter E , Chapter 21 , Property C ode, a s added by this Act, applies only to a real property i nterest a cquired by a governmental entit y on or after the effective date of this Act. (b) A real property interest that was acquired by a governmental entity befo r e the eff

ec tive date of this Act throug h eminent domain for a public use is govern ed by the l aw as it existed immediately before the effective date of this Act, and that law is cont inued in effect for that purpose. SECTION 4: This Act takes effect Januar y 1, 2004. Id. Because the Legisl ature expressly and unambiguously provided that the Act appl ied only to real prop erty interes ts acquired on or after the effective date of the Act, no court has discretion to apply the st atute retro actively. See Hegar , 605 S.W.3d
at 41

. F inally, the Balls argue that failing t o apply sub chapter E retroactively violates their constitutional right s . The Balls ’ second amended petition pleaded:
13

. Here th e Defendants are asking the Court to excuse seventeen years of inaction fol lowing a condemnation proceeding. The C ourt ’ s applic ation of legislative intent to a statute with no cle ar textual limitations currently infringe s upon Plaintiff ’ s Due Process under the 5 th and 14 th Amend ment of th e Due Pro c ess Clause of the Constitution, as well as Article 1 , Section 19 of the Texas Constit ution. U .S. Const. am end

. XIV ; U.S. Const. Amend . V; T ex. Const. art. I, § 19

. Such15

deprivation of personal property cannot be ignored. The Plaintiffs ’ Cons titu tiona l rights should not be jeo pardized t o justi fy the Defendant s ’ delay of nearl y 2 deca des when there is a s tat ute allowing for restoring the Plaintiff ’ s constitutional rights. Legislative Intent should not be used to circumvent the Pl aint iff ’ s constitut ional rights. Clerk ’ s R. 84. In their ap pellate brief, the Balls argued:
28

. The US Cons titution states that private property shall not be taken for public use without just co mpensation, and that no State shall deprive any person of life, liberty, or prop erty, without due process of law. U .S. Co nst. Amend V; U.S. Const. am end . XI V, § 1. Furth er , the Texas Constitution provides for a similar restriction against the deprivation of property exce pt by due course of the law of the land. T ex. Const. art. I, § 19

. In this case PE ARLAND has preclu ded the BALLS from just compensation by di sallo wi ng them to participate in the existing statutory repurchase laws. PEARLAND has potentially profited from sevent een plus years of increased land value and growth in the area surrounding the property and i f PEAR LAND has cancelled the public use for th e lan d then the BALLS should be able to repurch ase the property back from PEAR LAND at its present market value

. App. Br. 12. We have already concluded th at the Legislature unambi g uously enacted sub chapter E to be only pr ospective in ap plication. To th e ex tent th at the Balls have inten ded to argue that the statute is unconstitutional a s applied to them, th e arguments are inadequately briefed. See T EX
. R. A PP
. P. 38.1. Conclusion W e affirm the trial court ’ s jud gment.16 Peter Kelly Justice
Pa nel c on sists of Justices Kelly, Guer ra, and Farris.