Opinion issued September 16, 2021

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-20-00039-CV

———————————

LARRY AND SHELIA BALL, Appellants

V.

THE CITY OF PEARLAND, Appellee

On Appeal from the 412th Judicial District Court

Brazoria County, Texas

Trial Court Case No. 104288-CV

MEMORANDUM OPINION

Larry and Shelia Ball appeal from the trial court’s order granting the City of 

Pearland’s motion to dismiss under Texas Rule of Civil Procedure 91a. In the trial 

court, the Balls sought a declaration that they had a right to repurchase property that 

was taken pursuant to the City’s power of eminent domain in 2002. They argued that
2

a statute enacted in 2003, which provides a limited right to repurchase property taken 

for public use, should apply retroactively to them. They maintained that the failure 

to apply the later-enacted statute retroactively to their situation deprived them of due 

process under the United States and Texas Constitutions. Finally, they asserted that 

they possessed a remaining ownership interest in the property. The trial court 

rejected these arguments, finding the entire lawsuit to be baseless. 

We agree that the Balls’ lawsuit is baseless in law and fact because the laterenacted statute does not apply retroactively and because the Balls have no remaining 

interest in the surface estate of the land that was the subject of the 2002 taking. We 

affirm.

Background

Larry and Shelia Ball owned a 5.549-acre tract of land in Brazoria County (the 

“property”). Around 2000, the City of Pearland (the “City”) filed suit to acquire the 

property by eminent domain “to be used for construction and connection of public 

safety facilities and other related uses” as authorized by Article 11, Section 5 of the 

Texas Constitution. The Balls and the City of Pearland settled. The City agreed to 

pay $625,000 in just compensation, and the trial court entered an agreed final 

judgment on October 25, 2002. The agreed final judgment recited the procedural 

history and the parties’ stipulations. The decretal 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 this property is hereby divested out of Defendants, Ball. It is, 

further,

ORDERED that the fee simple title to the 5.549 acres described 

in Exhibit “A” is decreed to and vested in Plaintiff, City, provided, 

however, there is excluded from the estate vested in Plaintiff, City, and 

reserved to Defendants, 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, sulfur 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 directional drilling or other means outside the 

boundaries of the 5.549 acres. It is, further,

ORDERED that Defendants, Ball, have and recover of and from 

Plaintiff, City, the sum of SIX HUNDRED TWENTY-FIVE 

THOUSAND TWO HUNDRED EIGHTY-SIX DOLLARS 

($625,286.00).

. . . .

In 2003, the Texas Legislature enacted legislation that provided, under certain 

circumstances, a mechanism for the repurchase of property taken through eminent 

domain.

1 The statute, subchapter E of the Texas Property Code, allows the person 

from whom real property was acquired by eminent domain for a public use to 

repurchase the property if the public use for which it was acquired was canceled 

before such use, no progress was made toward that public use within ten years of the 

1 See TEX. PROP. CODE §§ 21.101–.103.
4

date of acquisition, or within ten years of acquisition, the property is no longer

needed for such use or for a substantially similar one.2

In 2019, the Balls requested information regarding the status and progress of 

the property’s public use. In August 2019, they filed suit seeking a declaratory 

judgment that the intended public use of the property was canceled, that subchapter 

E of the Property Code applies, and that they have the right to repurchase the 

property. The City filed special exceptions arguing that the Legislature expressly 

made subchapter E effective only as to acquisitions of property after January 1, 2004. 

The Balls amended their petition to seek a declaration that the City did not take the 

property “in fee simple unconditional.” The City again specially excepted arguing 

that subchapter E does not apply retroactively and that it took ownership without

conditions and with a reservation of mineral rights to the Balls. The trial court 

granted the special exceptions and ordered the Balls to amend their petition by 

November 22, 2019. 

Before the deadline for the Balls to file their second amended petition, the 

City of Pearland filed a motion to dismiss the Balls’ case under Texas Rule of Civil 

Procedure 91a because it was baseless in law or fact. The City argued that the 

Legislature expressly made subchapter E apply prospectively, and it did not apply 

to the acquisition of the Balls’ property in 2002. The City also argued that the agreed 

2 See id. § 21.101(a). 
5

final judgment included no conditions or possibility of reverter and that the Balls 

had no right to repurchase the property. 

The Balls’ live pleading at the time of the trial court’s ruling alleged: (1) the 

City did not take the property “fee simple unconditional”; (2) finding only 

prospective application of subchapter E based on legislative intent would deprive 

them of due process under the United States and Texas constitutions; and (3) they 

are entitled to the property under a theory of reversion because the property was 

never used “for construction and connection of public safety facilities and other 

related uses.” In response to the second amended petition, the City asserted that there 

is no constitutional right to repurchase property taken pursuant to eminent domain 

and for which a property owner was justly compensated. It also argued that the Balls 

had previously agreed that they received just compensation in the 2002 agreed 

judgment. 

In December 2019, the trial court dismissed the entire suit with prejudice, and 

the Balls appealed. 

Analysis

On appeal, the Balls contend that the court erred by granting the motion to 

dismiss. First, they argue that the City acquired the property subject to the condition 

that the property be put to a public use. Second, they argue that they have a 

constitutional right to repurchase the property because the City failed to use it for a 
6

public use for more than 17 years. They maintain that their exclusion from the 

subchapter E repurchase program deprived them of “just compensation.” Third, they 

argue that they have “a future interest, whether reversionary or otherwise, in the 

property.”

I. Standard of review

Rule 91a allows a party to move for early dismissal of a cause of action on the 

grounds that it has no basis in law or fact. TEX. R. APP. P. 91a.1. “A cause of action 

has no basis in law if the allegations, taken as true, together with inferences

reasonably drawn from them, do not entitle the claimant to the relief sought.” Id. “A 

cause of action has no basis in fact if no reasonable person could believe 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.—Houston [1st 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. We consider the entire 

agreed judgment, and we construe it in a manner that renders none of the provisions 

meaningless. Id.

II. Fee simple, surface, and mineral estates

“An estate in land that is conveyed or devised is a fee simple unless the estate 

is limited by express words or unless a lesser estate is conveyed or devised by 
7

construction or operation of law.” TEX. PROP. CODE § 5.001(a). Generally, when the 

term “fee simple title” is applied to “land,” it means “the absolute and indefeasible 

ownership of everything from the top of the ground to the center of the earth.” Cty.

Sch. Trustees of Upshur Cty. 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 and all minerals 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 

landowner may sever the mineral and surface estates and convey them separately.” 

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

grantor may withhold for itself a part of its estate . . . by granting the entire estate

but reserving the portion it desires to retain . . . .” Piranha Partners v. Neuhoff, 596 

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

“A governmental unit exercises its power of eminent domain through the 

process referred to as condemnation.” Burris v. Metro. Transit Auth. of Harris Cty., 

266 S.W.3d 16, 19 (Tex. App.—Houston [1st Dist.] 2008, no pet.). “Condemnation 

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

owner’s consent, but on the payment of adequate compensation.” San Jacinto River

Auth. v. Medina, 19-0400, 2021 WL 1432227, at *4 (Tex. Apr. 16, 2021). Eminent 

domain and condemnation procedures are governed by chapter 21 of the Texas 
8

Property Code. See TEX. PROP. CODE §§ 21.001–.103. “[T]he powers granted to 

condemn land are limited to the amount of property reasonably necessary for the 

public use.”

3 King v. Harris Cty. Flood Control Dist., 210 S.W.2d 438, 441 (Tex. 

Civ. App.—Galveston 1948, writ ref’d n.r.e.).

3 Ordinarily, and “[e]xcept where otherwise provided by law, the interest acquired by 

a condemnor under this chapter does not include the fee simple title to real property, 

either public or private.” TEX. PROP. CODE § 21.045. Article 3270, which was the 

predecessor to section 21.045, has been construed as a codification of the general 

rule limiting the amount of property taken for public use:

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 where otherwise expressly provided by law, the right secured 

(under the power of eminent 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 absence of 

statute, that the condemnation of property for a public use divests its 

owner of no right further than is necessary for the purpose for which 

the condemnation was authorized.’ 16 Tex. Jur. 679.

Meaney v. Nueces Cty. Nav. Dist. No. 1, 222 S.W.2d 402, 407 (Tex. Civ. App.—

San Antonio 1949, writ ref’d). Here, the City of Pearland did not acquire by 

condemnation 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, the 

Balls did not argue in the trial court or in this court that their rights were affected in 

any way by section 21.045. See TEX. PROP. CODE § 21.045.
9

III. Pearland acquired unconditional rights to the surface estate of the

property.

In 2002, the Balls entered into an agreed final judgment regarding the 

property. In the judgment, the court recited the procedural history. The second

paragraph of the judgment states:

Plaintiff, City filed this proceeding to acquire fee simple title to the 

land, and all improvements located thereon, of a 5.549 acre tract of land 

(the “Property”) more particularly described in Exhibit “A”, for the 

purpose of acquiring property to be used for construction and 

connection of public safety facilities and other related uses by Article 

11, Section 5 of the Texas Constitution.

(Emphasis added.) 

The court also recited ten factual statements to which the parties stipulated. 

Based in part on the stipulations, the court concluded that it had jurisdiction. The 

court then decreed:

It is therefore, 

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 this property is hereby divested out of Defendants, Ball. It is, 

further,

ORDERED that the fee simple title to the 5.549 acres described 

in Exhibit “A” is decreed to and vested in Plaintiff, City, provided, 

however, there is excluded from the estate vested in Plaintiff, City, and 

reserved to Defendants, 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, sulfur 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 
10

the 5.549 acres by directional drilling or other means outside the 

boundaries of the 5.549 acres. It is, further,

ORDERED that Defendants, Ball, have and recover of and from 

Plaintiff, City, the sum of SIX HUNDRED TWENTY-FIVE 

THOUSAND TWO HUNDRED EIGHTY-SIX DOLLARS 

($625,286.00).

. . . .

The Balls contend on appeal that the statement of purpose at the beginning of 

the judgment is a condition on the use of the property. The City of Pearland argues 

that the statement of purpose was a recital, not a condition. We agree with the City.

A recital is “an account or description of some fact or thing.” Recital, BLACK’S 

LAW DICTIONARY (11th ed. 2019); see Griffith Techs., Inc. v. Packers Plus Energy 

Servs. (USA), Inc., 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 contract acts 

as the formal statement establishing the reason for the transaction.”). “Recitations 

preceding the decretal portion 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 

1559933, at *4 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op.); 

see Goode v. Avis Rent–A–Car, 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 controlled or qualified by, the recitals, it is only decretal portion of judgment

that operates as an adjudication of the cause.”); Ellis v. Mortgage & Trust, Inc., 751 
11

S.W.2d 721, 724 (Tex. App.—Fort Worth 1988, no writ) (“The recitations preceding 

the decretal portion of the written instrument do not suffice to complete the rendition 

of the judgment. . . . Although reasons 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 controls over recitals.”).

The statement of purpose precedes the decretal language of the agreed 

judgment, and it forms no part of the judgment rendered. See Pye’s Auto Sales, 2007 

WL 1559933, at *4. The agreed judgment reserved mineral rights to the Balls, and 

it expressly ordered that the City take “fee simple title” to the 5.549-acre tract. Thus, 

fee simple title 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 reserve or retain for the Balls any 

property rights to the surface estate. It did not include any provision for the Balls to 

repurchase the property taken by the City. Construing the agreed final judgment as 

written, we conclude that the City’s ownership of the surface estate was 

unconditional. See Gulf Ins. Co., 22 S.W.3d at 422. 

Relying on El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798 

(Tex. 2012), the Balls further argue that they possess a future interest in the property. 

El Dorado Land Company sold property to the City of McKinney to be used for a
12

public park. 395 S.W.3d at 799. The special warranty deed conveying the land to the 

city expressly included two conditions: (1) “the conveyance was ‘subject to the 

requirement and restriction that the property shall be used only as a Community 

Park,” and (2) “[i]f the city decided not to use the property for that purpose, the deed 

further granted El Dorado the right to purchase the property.” Id. As we have 

explained, the 2002 agreed judgment did not include any conditions on the 

conveyance to the City of Pearland. It did not expressly give the Balls any right to 

repurchase the property. We conclude that the Balls possess no future interest in the 

surface estate of the property.

III. The Balls are not entitled to repurchase the property under the Property 

Code.

The Balls assert that they should be permitted to repurchase the property in 

accordance with subchapter E of chapter 21 of the Texas Property Code. They make 

several arguments, none of which are meritorious. 

First, the Balls argue that they have a common law vested interest in the 

property that would entitle them to repurchase the property under a retroactive 

application of subchapter E. We have explained that the Balls retained only a mineral 

interest in the property by virtue of the 2002 agreed judgment. Fee simple title to the 

surface estate of the property vested in the City of Pearland, and the Balls possess 

no present or future rights in the property, aside from the mineral rights. 
13

Next, the Balls make several arguments in support of retroactive application 

of subchapter E. They argue that the court has the ability to apply subchapter E 

retroactively because the only indication of prospective application is mere 

legislative intent and the constitutional prohibition against ex post facto laws does 

not apply. They also advocate for retroactive application under equitable principles.

When a statute is clear and unambiguous, we must apply its words according 

to their common meaning.

4 Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40–

41 (Tex. 2020). The Legislature unambiguously made subchapter E effective on 

January 1, 2004, and prospective in application. See Act of June 1, 2003, 78th Leg., 

R.S., ch. 1307, §§ 1–4, 2003 Tex. Sess. Law Serv. Ch. 1307.

When it enacted subchapter 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 retroactively. Id. The Act “relating 

4 The “General and Special Laws of Texas” is the official publication of the laws 

enacted by the Texas Legislature and certified by the Secretary of State. See TEX.

CONST. art. III, § 43(a) (“The Legislature shall provide for revising, digesting and 

publishing the laws, civil and criminal . . . .”); TEX. CONST. art. IV, § 21 (“He [the 

secretary of state] shall authenticate the publication of the laws . . . .”); Murphy v. 

State, 95 S.W.3d 317, 321 n.4 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)

(“Other than the publication of the session laws, Texas does not publish an official

set of its laws similar to the United States Code.”); 

https://lrl.texas.gov/collections/sessionlaws.cfm (last accessed Aug. 2, 2021) (“The 

General and Special Laws of Texas, often referred to as the ‘session laws,’ constitute 

a complete set of all bills passed into law by each session of the Texas Legislature. 

The Secretary of State assigns each Act a chapter number. Following each 

legislative session, the Acts are arranged in chapter-number order and are published 

as a bound set.”).
14

to the repurchase of real property acquired by a governmental entity through eminent 

domain” provides:

SECTION 2: Chapter 21, Property Code, is amended by adding 

Subchapter E to read as follows . . . .

SECTION 3. (a) Subchapter E, Chapter 21, Property Code, as 

added by this Act, applies only to a real property interest acquired by a 

governmental entity on or after the effective date of this Act.

(b) A real property interest that was acquired by a governmental entity 

before the effective date of this Act through eminent domain for a 

public use is governed by the law as it existed immediately before the 

effective date of this Act, and that law is continued in effect for that 

purpose. 

SECTION 4: This Act takes effect January 1, 2004.

Id.

Because the Legislature expressly and unambiguously provided that the Act 

applied only to real property interests acquired on or after the effective date of the 

Act, no court has discretion to apply the statute retroactively. See Hegar, 605 S.W.3d 

at 41.

Finally, the Balls argue that failing to apply subchapter E retroactively 

violates their constitutional rights. The Balls’ second amended petition pleaded:

13. Here the Defendants are asking the Court to excuse seventeen

years of inaction following a condemnation proceeding. The Court’s 

application of legislative intent to a statute with no clear textual 

limitations currently infringes upon Plaintiff’s Due Process under the 

5

th and 14th Amendment of the Due Process Clause of the Constitution, 

as well as Article 1, Section 19 of the Texas Constitution. U.S. Const. 

amend. XIV; U.S. Const. Amend. V; Tex. Const. art. I, § 19. Such 
15

deprivation of personal property cannot be ignored. The Plaintiffs’

Constitutional rights should not be jeopardized to justify the 

Defendants’ delay of nearly 2 decades when there is a statute allowing 

for restoring the Plaintiff’s constitutional rights. Legislative Intent 

should not be used to circumvent the Plaintiff’s constitutional rights. 

Clerk’s R. 84.

In their appellate brief, the Balls argued:

28. The US Constitution states that private property shall not be 

taken for public use without just compensation, and that no State shall 

deprive any person of life, liberty, or property, without due process of 

law. U.S. Const. Amend V; U.S. Const. amend. XIV, § 1. Further, the 

Texas Constitution provides for a similar restriction against the 

deprivation of property except by due course of the law of the land. 

Tex. Const. art. I, § 19. In this case PEARLAND has precluded the

BALLS from just compensation by disallowing them to participate in 

the existing statutory repurchase laws. PEARLAND has potentially 

profited from seventeen plus years of increased land value and growth 

in the area surrounding the property and if PEARLAND has cancelled 

the public use for the land then the BALLS should be able to repurchase 

the property back from PEARLAND at its present market value. 

App. Br. 12.

We have already concluded that the Legislature unambiguously enacted 

subchapter E to be only prospective in application. To the extent that the Balls have 

intended to argue that the statute is unconstitutional as applied to them, the

arguments are inadequately briefed. See TEX. R. APP. P. 38.1. 

Conclusion

We affirm the trial court’s judgment.
16

Peter Kelly

Justice

Panel consists of Justices Kelly, Guerra, and Farris.