April 30, 1958 

Honorable Robert S. Calvert 

Comptroller of Public Accounts 

Austin, Texas 

Opinion No. WW-422 

Dear Mr. Calvert 

Re: Payment of Special Commissioners in Condemnation Suits 

We are in receipt of you,r letter of Apri.1 11, 1958, asking for an opinion on 

payment for condemnation. commi,ssi,oners, said l,etter asking: 

‘“Would a special commi,ssioner appointed under condemnation 

proceedings for obtain,ing rights of way for the Highway Commission be all,owed $3.00 for each item in the ju,dgment requiring his 

appraisement or wol;,ld he be allowed $3.00 a day for all the items 

covered in the judgment? In other words, if a speciab commissioner acts on several items in one judgment or a different judgment in the same day, would he be allowed $3.00 for each i.tem, or 

would he be 1::mited to $3.00 for one day’s service? 

‘“In counties cor.+.airi.n g a population of more than five hun,dred thousari,,, wo;lld the sppecl~al commissioner be li,mited to a s:n.gle fee 

fixed by the Court r,ot less than $10.00, or would such commi,ssioner 

be on a per d:,em basis wj.th a fee as fixed by the Court not less than 

$10.00 p er day?” 

These ques’.ions req,~iire a consf.ru,cti.on of Section 3 of Art:.cle 3266, 

V.A.C.S., which reads as fol,lows: 

Commissioners sha1.l receive for their servi,ces Three Dollars 

($31, for each day they may be engaged in the performance of 

their dc,,ti,es. except tha : in counties of over five hun,dred thousari... (500.000) population, accordi,ng to the last preceding or any 

future Federal Census, the County Judge shall set the fee of the 

Commissioners at any amount he may deem reasonabl,e, not 

less than Ten, Dollars ($l,O). Commissioners may withhold their 

deci.sioc ur.trl the.17 fees are pai,d.” 
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Hon. Robert S. Calvert, page 2 (WW-422) 

There is a distinction between the special commi.ssioners referred to in the 

Title 52, V.A.C.S. (Arts. 3264-3271 V.A.C.S.) and petit juiors for regular 

civil cases. Their functions are not at al,1 similar and should not be confused. 

When a condemning authority desires to exercise its power of eminent domain, 

it files a “statement in writing” with the County Judge setti.ng forth certain 

facts, Art. 3264(l) V.A.C.S. The Ju,dge is then required to appoint “three disinterested freeholders of said county as special commissioners to assess said 

damages, giving preference to those that are agreed upon between the parties.” 

Art. 3264(Z), V.A.C.S. 

The commissioners are thereafter sworn in. Art. 3264(3), V.A.C.S., and they 

then meet to set the time and place for the hearing. Art. 3264(4), and cause 

notice to be issued. The notice after being served, is returnable to the commissioners, not the County Judge or the County Cl,erk. Art. 3264(5), V.A.C.S. 

“When the service of notice has been perfected, the commissioners shall at 

the time and place appointed or at any other time and place to which the hearing may be adjourned, proceed to hear the parties.“’ Art. 3264(10), V.A.C.S. 

“Commissioners shall have the power to compel. the attendance of witnesses 

and production of testimony, admini,ster oaths, and punish for contempt as 

fully and in the same manner as is provided by law for judges of county courts.” 

Art. 3264(11), V.A.C.S. (Emphasis added) 

A distinction between the passive role of petit jurors - who are called for a 

week’s “service,” and who may be compelled to serve, and who may or may 

not serve on a jury or may serve on several juries in one day, - and the active, initiative duties of the special commissioners, who cannot be compelled 

to serve as such, has already become apparent. 

The special commissioners, contrary to the limitati.ons imposed upon peti.t 

jurors, may view the property being condemned. “‘It follows, we think, that 

the commissioners, in making a personal inspection of said property, violated 

no provision of the Revised Statutes of Texas, governing condemnation proceedings in that they followed ordinary business practices in determining the 

value of the land. ” Dueitt v. Harris County, Civ. App., 1952, 249 S.W. 2d 636 

(Wr. Ref.). Nor, as is the practice with petit juries, is an unan,imity as to the 

amount of the award required. Dueitt v. Harris County, supra. 

Art. 3266, V.A.C.S. (which article in Section 3 thereof provi,des for payment 

of Commissioners) containing general provisions concerning condemnation 

suits, constantly refers to “the case” in the singular, for example: 
Hon. Robert S. Calvert, page 3 (WW-422) 

“1. When the county judge is disqualified to act in Ite za:e. . . 

and such special judge. . . shall proceed with the case. . .” 

“6. If either party be dissatisfied with the decision . . . and 

the cause shall be tried as in other civil causes in the county 

court. 

““7. If no objections to the decision are filed. . .‘I Indeed, 

Title 52, V.A.C.S., is merely the outli,ne of procedure for fili.ng and following through to judgment of one case, not a series 

of cases, or a “day’s worth” of cases. 

The condemnation action, strictly speaking, is not an action in the county 

court until an objection is filed to the Commissioners’ Award. City of El 

Paso v. Ward (Civ. App., 1948, 213 S. W. 2d 726). (NWH) It is a special 

proceeding under the aegis of the county judge rather than the county court. 

By appointing the special commissioners, the judge has, in effect, delegated 

certain independent fact finding duties to them. If no objections to their 

award are filed within ten days, “the county judge shall cause said decision 

to be recorded in the minutes of the County Court, and shall make the same 

the judgment of the Court and issue the necessary process to enforce the 

same.” Art. 3266(7), V.A.C.S. 

The commissioners must file their award with the Judge, not the Clerk. 

Art. 3266(6). V.A.C.S.; Wallace v. Van Zandt County, Civ. App., 1954, 264 

S.W. 2d 202 (NYT~): Fitzgerald v, City of Dallas (Civ. App., 1930, 34 S.W.Zd 

682 (WT. Ref.). i :~d -. ‘upon fili,ng of the objections to the award, the latter is 

set :>side and the amount thereof may not even be brought before th+> jury. 

Lower Colorado River Authority v. Bu,rton (Civ. App., 1943, l?O S.W. 2d 783 

(NWH); Nowlin v. Denton County (Civ. App., 1947, 200 S.W. 2d 865 (NWH)). 

The preceding discussion has perhaps been somewhat detailed, but it was 

felt necessary in order to point out the un:.que status of the special commissioners in condemnation p+oceedings, and the difference of their status from 

that of petit jurors and from Deputy Sheriffs attending prisoners in habeas 

corpus under Art. 1029, C.C.P., as suggested in your letter. 

It can be seen that each time commissioners are appointed a separate entity 

or “board” is created, i.e., they are appointed to assess damages for one 

particular case. Frequently, in practice, where a condemning authority 

files several cases with the same judge at the same time, a different set of 

commi,ssioners will be appointed to each case or the composition of the Board 

of Special Commissioners may differ. This would cl,early indicate that each 
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Hon. Robert S. Calvert, page 4 (WW-422) 

entity would be entitled to statutory compensation. If, coincidentally, the 

same three men are appointed as commissioners on each case, we do not 

see how the result should differ. Likewise, considering the administrative 

as well as judicial nature of the special commissioners’ duties and powers, 

and considering the reference in Title 52 to one particular case, it is our 

opinion that each special commissioner is entitled to be paid his statutory 

fee for each case he works on, regardless of how long he spends. (The 

Statutes do not provide for any length of working day, nor do they provide 

for a pro rata payment of the rather meager $3.00 for fractional days.) 

For example, if in one day a special commissioner signs citations for six 

cases, he is entitled, under Art. 3266(3) to $3.00 for each case attended to, 

or $18.00 for that day’s work. If on a subsequent day he inspects two pieces 

of property to be condemned, he would be entitled, under said article, to 

$6.00 for that day’s work. If he goes back to inspect the same property another day, he would likewise be entitled to the same compensation. If on 

another day he, with his fellow commissioners, hears eight cases argued, 

he would be entitled to $24.00 for that day’s work under said article. Abuse 

of this by the commissioners is amply guarded against by the ultimate control the County Judge retains over the case in regard to writing the judgment 

and assessing costs. 

Article 3266(3), V.A.C.S., provides that the commissioners may withhold 

their decision until their fees are paid. This statute, in our opinion, constitutes further proof that it is contemplated that the commissioners shall 

be paid by the case. If several cases are heard the first day, and they 

should dispose of the first case, they would make their award, and in compliance with the above statute would be entitled to withhold the award until 

their fees were paid. It would be absurd, we think, to say that they should-- 

once they have earned $3.00 and collected same before letting the award 

out of their possession--charge no fees for the remainder of the cases, or 

at the end of the day, have the various condemners return for their refunds 

or an equalization of accounts. 

The same reasoning applies to the special provisions for higher pay to commissioners in counties of 500,000 or more. The only difference would be 

that their daily rate would be higher. 

In Paragraph 1 of your letter you referred to “each item in the judgment 

requiring this appraisement.” We presume by “judgment” you meant 

“award,” for the commissioners cannot render a “judgment,” only the 

County Judge can do that. If in referring to “each item in the judgment”’ 

you contemplated a case where several tracts were condemned in one case, 
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Hon. Robert S. Calvert, page 5 (WW-422) 

tlie commissioners would be entitled only to the same fee as if only one 

tract were condemned. For example, if the State condemned Lots 1, 2 and 

3 belonging to John Doe in one suit, each Commissioner would be entitled 

to the same fee as if only one lot were embraced within the statement 

filed with the Judge. However, i,f three different cases were filed, and the 

special commissioners worked on the three cases together, their fee 

would be $9.00 for each day. 

We expressly overrule Attorney General’s Opinion No. O-1604 (1939). 

SUMMARY 

Under Art. 3266(3), V.A.C.S., special commissioners 

in condemnation are to be paid by the case. rather than 

by the day, regardless of the number ofses worked 

on. Attorney General’s Opinion No. O-1604 (1939) is 

expressly overruled. 

Very truly yours, 

WILL WILSON 

Attorney General 

APPROVED: 

OPINION COMMITTEE 

George P. Blackburn, Chairman 

Tom F. McFarling 

Linward Shivers 

Wallace Finfrock 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: 

W. V. Geppert