IN THE

TENTH COURT OF APPEALS

No. 10-08-00212-CV

No. 10-08-00213-CV

No. 10-08-00214-CV

No. 10-08-00215-CV

No. 10-08-00216-CV

IN RE ETC KATY PIPELINE, LTD

Original Proceeding

MEMORANDUM OPINION

ETC Katy Pipeline, LTD. (ETC) filed a petition for writ of mandamus in each of 

these five original proceedings challenging the trial court's orders denying its motions

to appoint special commissioners and its orders granting the landowners’ motions to 

dismiss in each of the underlying cases.

1 We will conditionally grant the writ in each 

case.

 

1

The real-parties-in-interest/landowners in the five cases are FPJ Pipeline Corridor No. 1 L.L.C., 

FPJ Land Company, L.T.D., Reagan Management Company, Frederick L. Reagan, John F. Reagan, Patricia 

R. Myrick, FLR Pipeline Corridor No.1 L.L.C., Camp Cooley, LTD., North CC Pipeline Corridor, L.L.C., 

Martin Pipeline Corridor, L.L.C., Circle M Ranch, LTD., Ruth Martin Ranch, Inc., McCormick Pipeline 
In re ETC Katy Pipeline, LTD Page 2

Background

On February 14, 2008, ETC, a gas utility company, filed five original petitions for 

condemnation seeking to obtain property from the landowners through eminent 

domain. Commissioners were appointed and a special commissioners’ hearing was set. 

On the day of the hearing, counsel for ETC told the landowners and the special 

commissioners that it did not want to have the hearing and that it would be dismissing 

its cases. ETC filed motions to dismiss and notices to nonsuit its claims against the 

landowners on March 12, 2008 and, through alleged inadvertence, requested that the 

cases be dismissed “with prejudice.”

ETC filed its second set of five condemnation petitions, at issue in this 

mandamus, on March 17, 2008 in an effort to cure the errors contained in the original 

condemnation petitions. The trial court refused to appoint special commissioners for 

the second condemnation cases. The landowners filed motions to dismiss on the 

grounds of res judicata because the original petitions were dismissed “with prejudice.” 

The trial court signed orders refusing to appoint special commissioners, granted the 

motions to dismiss, and awarded attorney’s fees to the landowners. ETC brings these 

five petitions for writ of mandamus asking us to direct the trial court to vacate its orders

denying ETC’s motions to appoint special commissioners and dismissing the petitions.

 

Corridor, L.L.C., Kenneth C. McCormick, Sr., and Kenneth C. McCormick, Jr. The Respondent is the 

Honorable Robert Stem, sitting in the 82nd Judicial District Court of Robertson and Falls Counties, Texas.
In re ETC Katy Pipeline, LTD Page 3

Mandamus Relief

Mandamus is "an extraordinary remedy, available only in limited 

circumstances." In re Chu, 134 S.W.3d 459, 462 (Tex. App.—Waco 2004, orig. 

proceeding). A writ of mandamus will issue only if (1) the trial court violates a duty 

imposed by law or clearly abuses its discretion, and (2) there is no other adequate 

remedy at law, such as an appeal. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007) 

(orig. proceeding); In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. 

proceeding) (citing Walker v. Packer, 827 S.W.2d 833 (Tex. 1992)).

Abuse of Discretion 

ETC argues that the trial court abused its discretion when it refused to appoint 

special commissioners after the second petitions were filed. A condemnation 

proceeding is a two-part procedure involving first, an administrative proceeding, and 

then if necessary, a judicial proceeding. In re State, 65 S.W.3d 383, 385 (Tex. App.—Tyler

2002, orig. proceeding) (citing Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 241-42 

(Tex. 1984)). During the administrative phase, the special commissioners award 

compensation for the taking and assess the costs of the proceeding. Amason, 682 S.W.2d 

at 242; see TEX. PROP. CODE ANN. § 21.042 (Vernon Supp. 2002), § 21.047 (Vernon 2000). 

A trial court does not have jurisdiction in the administrative phase of a condemnation 

proceeding; therefore, any judgment and order made outside of the statutory authority 

is void. In re Energy Transfer Fuel, LP, 250 S.W.3d 178, 181 (Tex. App.—Tyler 2008, orig. 

proceeding). The beginning phase of an eminent domain proceeding is entirely 

administrative, and it does not convert into a judicial proceeding until objections to the 
In re ETC Katy Pipeline, LTD Page 4

special commissioners’ award are filed. See TEX. PROP. CODE ANN. § 21.018 (Vernon 

1984); Denton County v. Brammer, 361 S.W.2d 198, 200 (Tex. 1962).

Having reviewed the mandamus record before us and the applicable law, we 

conclude that the refusal to appoint commissioners and the “dismissal with prejudice” 

ruling were abuses of discretion. The trial court lacked jurisdiction to act outside of the 

statute during the administrative phase of the condemnation proceeding. See In re State, 

85 S.W.3d at 875 (holding that trial court lacks jurisdiction to act beyond statute during 

administrative phase of proceeding and any such action is abuse of discretion). The 

trial court abused its discretion because it had a duty to appoint special commissioners 

and lacked jurisdiction to dismiss ETC’s cases on res judicata grounds. We sustain 

ETC’s first issues in each proceeding.

Inadequate Remedy at Law 

An abuse of discretion alone does not warrant the issuance of a writ of 

mandamus. We must also consider whether ETC has an adequate remedy at law by 

appeal or otherwise. There is not an adequate remedy by appeal when a party is in 

danger of permanent deprivation of substantial rights. Id. at 388. The landowners 

argue that an adequate remedy by appeal is available because ETC is currently 

pursuing appellate remedies in this court.2 See In re Lerma, 144 S.W.3d 21 (Tex. App.—

 

2 ETC filed appellate briefs with this court on August 19, 2008 arguing in two issues that (1) the 

trial court abused its discretion in dismissing the case with prejudice when “dismissal with prejudice” 

was requested inadvertently and (2) that it was error for the court to deny its post-trial motions 

requesting that the order be corrected and dismissed “without prejudice.” 
In re ETC Katy Pipeline, LTD Page 5

El Paso 2004, orig. proceeding) (denying writ when relator had two appeals pending 

when mandamus was filed).

The Fourth Court of Appeals’ opinion in Garcia is instructive on this issue. See 

Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 824 (Tex. App.—San Antonio 1994, 

orig. proceeding). In Garcia, the San Antonio Court of Appeals found mandamus to be 

proper where the relator, who was seeking to condemn an easement for a pipeline, 

faced a sixty-day delay in the condemnation proceeding due to the trial court's 

interference and penalties and expenses associated with the delay. The Garcia court 

concluded that "neither the district court nor a court of appeals has any mechanism by 

which it could return the expedited procedure and costs of which the relator was 

deprived." Id. The court also held that mandamus relief is generally proper when a 

judicial body operates to deny a litigant a peculiar right or directly interferes with the 

jurisdiction of another court or administrative body. Id.

Like Garcia, appeal is not an adequate remedy in this case. In Garcia the trial 

court, by way of injunction and continuance, was effectively delaying the 

commissioners’ hearing process by sixty days. Here, the trial court has gone far beyond 

Garica by refusing to appoint special commissioners. Additionally, more than ninety 

days have passed since the filing of the original petition. The Property Code provides 

condemnors a substantial right to an expedited hearing and possession of the easement 

immediately after the commissioners file their findings. See id. The delay involved in 

this case, like Garcia, is not the delay of waiting until a court proceeding is over to 

appeal, but the delay of wrongfully halted proceedings over which another body has 
In re ETC Katy Pipeline, LTD Page 6

jurisdiction. Id.; cf. HCA Health Servs. v. Salinas, 838 S.W.2d 246, 248 (Tex. 1992) (no 

adequate remedy by appeal for litigation deadlocked when two courts attempted to 

exercise jurisdiction).

Because the trial court's orders permanently deprive ETC of the substantial right 

of an expedited procedure and it has no adequate remedy by appeal, ETC is entitled to 

mandamus relief. See Prudential, 148 S.W. 3d at 135-39. We sustain ETC’s second issue. 

Conclusion

Having determined that the trial court was without jurisdiction to refuse to 

appoint special commissioners and to grant the motions to dismiss on res judicata 

grounds, we conditionally grant mandamus relief. See In re Energy Transfer Fuel, LP, 250 

S.W.3d at 182; see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). The writ will 

issue in each case only if Respondent fails to withdraw his order granting the motion to 

dismiss signed on March 31, 2008, or fails to appoint special commissioners within 21

days from the date of this opinion.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents with a note)*

Petitions granted 

Opinion delivered and filed October 1, 2008

[OT06]
In re ETC Katy Pipeline, LTD Page 7

* (Chief Justice Gray would deny each of the five petitions for writ of mandamus. A 

separate opinion will not issue. He notes, however, that while he agrees with the 

analysis of In re State, 65 S.W.3d 383 (Tex. App.—Tyler 2002, orig. proceeding) and Gulf 

Energy Pipeline Co. v. Garcia, 884 S.W.2d 821 (Tex. App.—San Antonio 1994, orig. 

proceeding), those proceedings are easily distinguished. In State and Garcia, the 

administrative portion of the condemnation proceeding was ongoing, and the trial court 

was attempting to exercise control over and during the administrative process. No final 

judgment had been rendered dismissing the proceeding. Thus, the only way to obtain 

relief from the trial court’s interference was by mandamus. In this proceeding, 

however, the trial court has rendered a final judgment of dismissal. That judgment can 

be directly and immediately appealed. This mandamus proceeding could be a more 

timely review of the trial court’s judgment than a direct appeal if we give it our 

immediate attention. But that is also true of any proceeding that has been finally 

disposed by the trial court. If the appeal needs to be expedited because of the nature of 

the underlying dispute, it can be. But there is no justification, much less authority, for 

hurtling this proceeding to the front of the line because it is filed as a mandamus when 

a direct appeal is not only available but is actually currently pending and, if 

appropriate, a motion to expedite can be filed and considered. Because there is an 

adequate remedy by direct appeal, he would deny ETC’s petition for a writ of 

mandamus. The Court’s ruling will, of course, moot the pending appeals and therefore 

Chief Justice Gray would simultaneously dismiss those five proceedings.)