April 30, 1958

Honorable Robert S. Calvert Comptroller of Public Accounts Austin, Texas Opinion No. WW-422

Dear Mr. Calvert Re: Payment ofSpecial Commissioners in Condemnation Suits We are in receipt ofyou,r letter ofApri.1 11,1958, asking for an opinion on payment for condemnation. commi,ssi,oners, said l,etter asking:

‘“Would aspecial commi,ssioner appointed under condemnation proceedings for obtain,ing rights ofway 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 aday for all the items covered inthe judgment? In other words, ifa speciab commissioner acts on several items in one judgment or adifferent judgment inthe 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 gapopulation ofmore than five hun,dred thousari,,,wo;lld the sppecl~al commissioner be li,mited to as:n.gle fee fixed by the Court r,ot less than $10.00, or would such commi,ssioner be on aper d:,em basis wj.th afee as fixed by the Court not less than $10.00 per day?” These ques’.ions req,~iire aconsf.ru,cti.on of Section 3ofArt:.cle 3266, V.A.C.S., which reads as fol,lows: Commissioners sha1.l receive for their servi,ces Three Dollars ($31, for each day they may be engaged inthe performance of their dc,,ti,es. except tha: in counties of over five hun,dred thousari... (500.000) population, accordi,ng to the last preceding or any future Federal Census, the County Judge shall set the fee ofthe Commissioners at any amount he may deem reasonabl,e, not less than Ten, Dollars ($l,O). Commissioners may withhold their deci.sioc ur.trl the.17fees are pai,d.”- -

Hon. Robert S. Calvert, page 2(WW-422)

There is adistinction between the special commi.ssioners referred to inthe 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,1similar and should not be confused. When acondemning authority desires to exercise its power ofeminent domain, it files a “statement inwriting” 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 ofnotice 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 ofwitnesses 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 ofpetit jurors - who are called for a week’s “service,” and who may be compelled to serve, and who may or may not serve on ajury 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 tothe limitati.ons imposed upon peti.t jurors, may view the property being condemned. “‘It follows, we think, that the commissioners, in making apersonal inspection of said property, violated no provision ofthe Revised Statutes of Texas, governing condemnation proceedings inthat they followed ordinary business practices in determining the value ofthe 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 tothe amount of the award required. Dueitt v. Harris County, supra. Art. 3266, V.A.C.S. (which article inSection 3thereof provi,des for payment ofCommissioners) containing general provisions concerning condemnation suits, constantly refers to “the case” inthe 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. Ifno objections to the decision are filed.
..‘I Indeed, Title 52, V.A.C.S., is merely the outli,ne of procedure for fili.ngand following through tojudgment of one case, not aseries of cases, or a “day’s worth” ofcases. The condemnation action, strictly speaking, is not an action in the county court until an objection is filed to the Commissioners’ Award. City ofEl Paso v. Ward (Civ. App., 1948, 213S. W. 2d 726). (NWH) It is aspecial 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. Ifno objections to their award are filed within ten days, “the county judge shall cause said decision to be recorded inthe minutes ofthe County Court, and shall make the same the judgment ofthe 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 ofDallas (Civ. App., 1930, 34 S.W.Zd 682 (WT. Ref.). i -. :~d‘upon fili,ng ofthe 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 itwas felt necessary in order to point out the un:.que status of the special commissioners incondemnation p+oceedings, and the difference oftheir status from that of petit jurors and from Deputy Sheriffs attending prisoners in habeas corpus under Art. 1029, C.C.P., as suggested inyour letter. It can be seen that each time commissioners are appointed aseparate entity or “board” is created, i.e., they are appointed to assess damages for one particular case. Frequently, in practice, where acondemning authority files several cases with the same judge at the same time, adifferent set of commi,ssioners will be appointed to each case or the composition ofthe Board ofSpecial Commissioners may differ. This would cl,early indicate that each- -

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 ofthe special commissioners’ duties and powers, and considering the reference in Title 52to 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 ofhow long he spends. (The Statutes do not provide for any length ofworking day, nor do they provide for apro rata payment ofthe rather meager $3.00 for fractional days.) For example, ifin one day aspecial 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 ofproperty to be condemned, he would be entitled, under said article, to $6.00 for that day’s work. Ifhe 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 ofthis 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. Itwould be absurd, we think, to say that they should-- once they have earned $3.00 and collected same before letting the award out oftheir 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 ofaccounts. The same reasoning applies to the special provisions for higher pay to commissioners incounties of 500,000 or more. The only difference would be that their daily rate would be higher. In Paragraph 1ofyour letter you referred to “each item inthe 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 inthe judgment”’ you contemplated acase where several tracts were condemned in one case,-. -

Hon. Robert S. Calvert, page 5(WW-422)

tlie commissioners would be entitled only to the same fee as ifonly one tract were condemned. For example, ifthe State condemned Lots 1,2and 3belonging to John Doe in one suit, each Commissioner would be entitled to the same fee as ifonly one lot were embraced within the statement filed with the Judge. However, i,fthree 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 ofthe 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