source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    In re STATE of Texas.
    No. 03-10-00260-CV.
    Court of Appeals of Texas, Austin.
    Nov. 12, 2010.

      Christopher Stephen Johns, Justin Allen Hodge, Dawson, Sodd, Ellis & Hodge, LLP, Austin, TX, for relator.
    Susan Desmarais Bonnen, Assistant Attorney General, Austin, TX, for real party in interest.
    Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
   OPINION

DAVID PURYEAR, Justice.

In November 2009, the State, “acting by and through” the Texas Transportation Commission (the “Commission”) and the Texas Department of Transportation (the “Department”) (cumulatively the “State”), initiated an eminent domain proceeding in order to acquire property from James and Rosemary LeGuin (“the LeGuins”). After the State initiated the proceeding, the Le-Guins asked the State to disclose various documents related to the value of the property to be condemned and to construction plans for the property. The State objected to the request, but the trial court ordered the State to produce the requested documents. In response to the trial court’s order, the State filed a petition for writ of mandamus asking this Court to vacate the trial court’s order. We will conditionally grant the writ.

STATUTORY FRAMEWORK

Before addressing the issues presented in this mandamus, some preliminary background regarding eminent domain proceedings is helpful. “The eminent domain statute is designed to provide a speedy and fair assessment of damages.” Gulf Energy Pipeline Co. v. Garcia, 884 S.W.2d 821, 828 (Tex.App.-San Antonio 1994, orig. proceeding); see In re State, 85 S.W.3d 871, 876 (Tex.App.-Tyler 2002, orig. proceeding) (op. on reh’g). Under current law, the eminent domain process occurs in two phases. Blasingame v. Krueger, 800 S.W.2d 391, 392 (Tex.App.-Houston [14th Dist.] 1990, orig. proceeding). The first phase is administrative in nature. After an eminent domain proceeding is filed in a trial court, Tex. Prop.Code Ann. § 21.012 (West Supp. 2009), the trial court appoints three special commissioners who “assess the damages of the owner of the property being condemned,” id. § 21.014 (West 2004); see id. § 21.042 (West Supp. 2009), and “file an award which, in their opinion, reflects the value of the sought-after land,” Amason v. Natural Gas Pipeline Co., 682 S.W.2d 240, 242 (Tex.1984). The administrative phase is designed to provide “a means to quickly award damages ... without the delays that occur in court proceedings.” In re State, 85 S.W.3d at 876; see also PR Investments & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 478 (Tex.2008) (explaining that administrative phase provides parties with opportunity to present their case in “streamlined fashion and to resolve their differences” without “the burdens of a trial”). In other words, the “purpose of the administrative phase is to provide the parties an opportunity for a prompt resolution of the case with a minimum of expense.” City of McKinney v. Eldorado Park, Ltd., 206 S.W.3d 185, 196 (Tex.App.-Eastland 2006, pet. denied). During this phase, the trial court only has “jurisdiction to appoint the commissioners, receive their opinion as to value, and render judgment based upon the commissioners’ award.” Gulf Energy Pipeline Co., 884 S.W.2d at 822. The trial court has no authority to control the timing of or otherwise interfere with the commissioners’ hearing. Id. at 823.

If the property owner or the condemning authority is dissatisfied with the commissioners’ award, either may file objections to the commissioners’ findings in the trial court. Tex. Prop.Code Ann. § 21.018 (West 2004). Once those objections are filed, the second phase goes into effect. Blasingame, 800 S.W.2d at 393. In this phase, the commissioners’ award is vacated, id., and the administrative phase converts into a normal cause to be tried “in the same manner as other civil causes” in the trial court, Tex. Prop.Code Ann. § 21.018(b). See also In re State, 85 S.W.3d at 877 (stating that objections to commissioners’ findings entirely wipe out commissioners’ award and prohibit any judgment based on that award). It is only after a party files objections that the trial court obtains full jurisdiction over the case. State v. Blackstock, 879 S.W.2d 125, 129 (Tex.App.-Houston [14th Dist.] 1994, writ denied). In other words, the trial court does not gain jurisdiction “as a court ... until the objections” are filed. Grant v. United Gas Pipe Line Co., 457 S.W.2d 315, 319 (Tex.Civ.App.-Corpus Christi 1970, writ ref'd n.r.e.).

BACKGROUND

In this case, the State sought to acquire property from the LeGuins and initiated an eminent domain proceeding. The State sought the property in order to expand IH-35. After the State initiated the eminent domain proceeding, the trial court appointed three “special commissioners to assess the damages to the owner of the property being condemned,” see Tex. Prop. Code Ann. § 21.014, and a commissioner’s hearing was set for June 2010, id. § 21.015 (West 2004).

Prior to the hearing, the LeGuins filed an extensive request for information, asking the State to produce the following types of documents prior to the hearing:

• appraisals, value studies, and reports concerning the property to be condemned
• the work file used by an appraiser to make an initial valuation
• design plans and documents showing details of the construction to be conducted on the property
• documents that are relevant to the market value of the property to be condemned and to the value of the remainder of the LeGuins’ property before and after the taking
• documents relating to any regulation or rule that affects the value of the LeGuins’ property

In filing this request, the LeGuins contended that section 21.024 of the property code allowed the disclosure sought. See Tex. Prop.Code Ann. § 21.024 (West Supp. 2009) (covering “Production of Information by Certain Entities Considered Critical Infrastructure”). In response to the request, the State filed various objections arguing that the property code provision does not apply to the State, the Commission, or the Department. Shortly thereafter, the LeGuins filed a motion to compel the release of the information requested.

After the LeGuins filed their motion to compel, a hearing was scheduled with the trial court. Ultimately, the trial court granted the LeGuins’ motion to compel and ordered the State to produce the documents requested. After the trial court granted the motion to compel, the State filed this petition for writ of mandamus.

DISCUSSION

In its petition, the State asserts that mandamus is proper because “the trial court abused its discretion in ordering the State to produce information pursuant to a request under Texas Property Code section 21.024, and the State has no adequate remedy by appeal.” See In re Columbia Med. Center, 290 S.W.3d 204, 207 (Tex.2009) (explaining that mandamus may properly issue to “correct a clear abuse of discretion or the violation of a duty imposed by law” when “an adequate remedy by appeal does not exist”).

There is No Adequate Remedy

In its petition, the State contends that mandamus is warranted in this case because it will have no adequate remedy if it is required to disclose the information sought. The LeGuins, on the other hand, argue that mandamus is inappropriate because there is an adequate remedy by appeal. Specifically, the LeGuins assert that because the parties to a special commissioners’ condemnation proceeding are entitled to a de novo appeal in the trial court, see Tex. Prop.Code Ann. § 21.018, the State has an adequate remedy by appeal. Further, the LeGuins insist that the State previously argued that the de novo appeal provided an adequate appellate remedy and should, therefore, be prohibited from taking a contrary position in this case.

In determining whether there is an adequate remedy by appeal, courts “must consider whether mandamus -will preserve important substantive and procedural rights from impairment or loss.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig.proceeding). There “is no adequate remedy by appeal” when the “parties are in danger of permanently losing substantial rights.” Gulf Energy Pipeline Co., 884 S.W.2d at 824. Further, courts may consider whether mandamus will “allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.” In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex.2004). For example, questions of law that are likely to recur yet elude appellate review may be addressed through mandamus. Id. at 138. In addition, courts may determine whether affording relief through mandamus will “spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” Id.

The issue presented in this mandamus is a question of law: whether section 21.024 of the property code requires the State to disclose certain information during the administrative portion of an eminent domain proceeding. See Tex. Prop.Code Ann. § 21.024. Further, the issue is likely to recur as evidenced by the fact that there is currently another mandamus pending with this Court addressing the very same issue. See In re State, No. 03-10-00360-CV. Moreover, the issue bears upon a substantial right. The right to a quick resolution during the administrative phase without the delays that are found in court proceedings has been characterized as “a substantial right,” In re State, 85 S.W.3d at 876-77, that belongs to entities with the power of eminent domain, see Gulf Energy Pipeline Co., 884 S.W.2d at 824. See also PR Invs. & Specialty Retailers, Inc., 251 S.W.3d at 478 (stating that pretrial settlements through administrative proceedings should be encouraged).

If the State is correct, then section 21.024 does not apply, and requiring the State to submit to extensive discovery requests will interfere with the substantial right to obtain a quick assessment of damages without the expense and delays of traditional court proceedings. Moreover, although the LeGuins insist that the right to a trial de novo in the trial court after the commissioners’ hearing provides an adequate remedy for any error, it is not readily apparent how the benefit of a trial de novo could possibly address or undo the deprivation of the right to an unencumbered and expedited administrative hearing. Cf. In re Jorden, 249 S.W.3d 416, 419-20 (Tex.2008) (orig.proceeding) (pertaining to availability of “presuit depositions” and noting that if relators’ claim is true and law prohibits those depositions, then scheduled depositions cannot be “un-taken”). In other words, the trial court would have no “mechanism by which that right, once lost, [could] be recovered.” See In re State, 85 S.W.3d at 877.

Similarly, it seems unlikely that this issue would ever be addressed during appellate review. If the State obtains a favorable result in a trial de novo, it will likely be precluded from appealing the trial court’s judgment or raising the disclosure issue on appeal. If the State does not obtain a favorable result and seeks to appeal the trial court’s judgment, it is not clear on what basis the issue could be addressed because allowing discovery “a little too early” is unlikely to lead to an improper judgment. See In re Jorden, 249 S.W.3d at 419. Regardless, even assuming that an appellate court could ever address the issue through a traditional appeal, the right to the quick administrative hearing would still have been lost.

As discussed above, the LeGuins contend that even if mandamus might otherwise be appropriate, this Court should still deny relief because the State has previously asserted that the right to a trial de novo after the commissioners’ hearing will cure any error occurring in the commissioners’ hearing. As support for their assertions, the LeGuins cite to Blasingame v. Krueger. In that case, the property owners sought to subpoena various State employees, but the trial court granted a motion to quash filed by the State. 800 S.W.2d at 392. After the trial court granted the motion, the owners filed a mandamus petition. In their response to the petition, the State argued that mandamus relief should be denied because the ability to have a trial de novo after the commissioners’ hearing provided the owners with an adequate remedy by appeal. The appellate court agreed and determined that the trial de novo will allow the owners to obtain the information sought through “ ‘regular’ discovery in accordance with the rules of civil' procedure.” Id. at 394.

Although the LeGuins correctly point out that the State did previously argue that the right to a de novo trial after a commissioners’ hearing provided an adequate remedy, the situation presented in this mandamus proceeding is not analogous to that found in Blasingame. Bla-singame involved an order prohibiting the disclosure of information during a commissioners’ hearing, but this case involves an order compelling the release of information. Any error resulting from the failure to provide information could actually be cured by the disclosure of that information during a subsequent trial, but as discussed above, any potential harm resulting from the improper disclosure of information during a commissioners’ hearing cannot be undone through a subsequent trial de novo.

For these reasons, we conclude that the State has no adequate remedy by appeal and that the failure to employ mandamus when this type of substantial right is placed in jeopardy “would vitiate and render illusory the right to a rapid, inexpensive alternative to traditional litigation.” Gulf Energy Pipeline Co., 884 S.W.2d at 824; see In re Prudential Ins. Co., 148 S.W.3d at 138.

The Trial Court Abused its Discretion

Having determined that there is no adequate remedy available to the State if the State’s assertions are correct, we must now determine whether the trial court abused its discretion by ordering the State to disclose the information sought by the LeGuins under section 21.024 of the property code. See Tex. Prop.Code Ann. § 21.024. A court is said to abuse its discretion when it acts “without reference to any guiding rules and principles,” Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 32 (Tex.2010), or acts in “an arbitrary or unreasonable manner,” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Regarding factual determinations, appellate courts apply a deferential standard and will only disturb the trial court’s determination if “it is shown to be arbitrary and unreasonable.” In re Bustamante, 104 S.W.3d 704, 705 (Tex.App.-El Paso 2003, orig. proceeding). However, regarding the resolution of legal questions, appellate courts are “much less deferential” because a trial court has no discretion to determine what the law is. Id. Accordingly, a trial court “abuses its discretion” when it fails to analyze or correctly apply the law. Id.

In its petition, the State asserts that section 21.024 does not apply to the State, the Commission, or the Department. The issue presented involves a question of statutory construction. When presented with an issue of statutory construction, the chief concern “is to ascertain and give effect to the Legislature’s intent.” Klein v. Hernandez, 315 S.W.3d 1, 3-4 (Tex.2010). In making this determination, courts should look to the plain meaning of the words used in the statute. See Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000). We presume that every word was deliberately chosen and that excluded words were left out on purpose. USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied). We also “presume that the Legislature intended all provisions of a statute to be effective, and that it intended a just and reasonable result.” City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex.2010). When determining legislative intent, the entire act, not isolated portions, must be considered. Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998). We may also consider the “object sought to be attained” by enacting the statute, the “circumstances under which the statute was enacted,” and the “consequences of a particular construction.” Tex. Gov’t Code Ann. § 311.023 (West 2005).

As a preliminary matter, we note as described above that the administrative phase was originally designed to provide a quick, inexpensive, and unencumbered mechanism by which the damages to a landowner may be determined. See In re State, 85 S.W.3d at 876; Gulf Energy Pipeline Co., 884 S.W.2d at 824. We also note that the LeGuins’ assertions are in direct conflict with that statutory scheme. See Gulf Energy Pipeline Co., 884 S.W.2d at 822-23. In fact, despite the legislative mandate denying the trial court an active role in the administrative phase of an eminent domain proceeding and requiring that commissioners set and conduct a hearing “promptly” and “at the earliest practical time,” see Tex. Prop.Code Ann. § 21.015, the LeGuins essentially ask this Court to conclude that a large proportion of (if not all) eminent domain proceedings initiated by a governmental entity are subject to the delays inherent in scheduling hearings before a trial court, see Peak Pipeline Corp. v. Norton, 629 S.W.2d 185, 187 (Tex.App.-Tyler 1982, no writ) (stating that eminent domain “statutory authority and the legislative intent from which it emanates, contemplates the utilization of special commissioners to accomplish the goal of a speedy and fair assessment of damages”); City of Houston v. Plantation Land Co., 440 S.W.2d 691, 695 (Tex.Civ.App.-Houston [14th Dist.] 1969, writ ref'd n.r.e.) (explaining that legislature intended to establish “expeditious procedure”). Furthermore, construing section 21.024 as applying to the administrative phase would necessarily undermine the intent of the legislature by adding expense to the administrative phase. While the legislature is free to override its prior intent through subsequent enactments, the breadth of the departure suggested by the LeGuins in the absence of language expressly disavowing the prior intent gives us pause.

Moreover, construing section 21.024 as applying to the State is inconsistent with the very language of that provision. That provision requires certain condemning authorities to release information “related to the taking of [a] person’s private property by the entity through the use of eminent domain.” Id. § 21.024(a). Further, the provision explains that only “an entity which is considered critical infrastructure and which is authorized by law to take private property through the use of eminent domain is required to produce” the information described above. Id. (emphases added). When describing what is meant by the phrase “critical infrastructure,” the code states that “[a] utility, a common carrier, or a transporter of oil, gas, or the products of oil or gas is considered to be within the definition of critical infrastructure under Section 421.001, Government Code.” Id. The government code specifies that “ ‘critical infrastructure’ includes all public or private assets, systems, and junctions vital to the security, governance, public health and safety, economy, or morale of the state or the nation.” Tex. Gov’t Code Ann. § 421.001(2) (West 2005) (emphasis added).

At first glance, the State and the Commission and the Department as governmental agencies do not seem to fall under the government code’s definition of “critical infrastructure” because they do not seem to readily qualify as “assets, systems, [or] functions.” See Tex. Gov’t Code Ann. § 421.001(2). While they unquestionably may physically own, create, or maintain “assets, systems, and functions” that would qualify as critical infrastructure, that does not necessarily compel a conclusion that they themselves are critical infrastructure. That determination also seems to comport with the commonly accepted definition of “infrastructure” as “the system of public works of a country, state, or region.” See Merriam-Webster available at www. merriam-webster.com. Furthermore, the government code provision defining “critical infrastructure” has a separate and distinct definition for “agency,” which would seem to more readily apply to the entities at issue. Id. § 421.001(1). Moreover, it is worth noting that nothing in the definition of “agency” indicates that agencies are considered “critical infrastructure.” Id.

This conclusion is supported by a later subsection in section 21.024, which references a government code provision applying only to non-governmental entities. Subsection 21.024(i) states that section 552.0087 of the government code “does not apply in relation to those entities described in Subsection(a),” which are subject to the disclosure requirements at issue. Tex. Prop.Code Ann. § 21.024(a), (i). Section 552.0087 of the government code is part of the Public Information Act and specifies that non-governmental entities with the power to use “eminent domain” are subject to the Act. Tex. Gov’t Code Ann. § 552.0037 (West Supp.2009). Given that the government code provision applies only to non-governmental entities and that the property code exempts all of the entities described in subsection 21.024(a) from the requirements imposed by the government code provision, the most logical resolution of those statutes leads to the conclusion that subsection 21.024(a) covers nongovernmental entities and, therefore, does not apply to the State, the Commission, or the Department. This conclusion is further supported by the fact that when the legislature previously decided to impose disclosure requirements on governmental entities in the eminent domain context, it explicitly used the phrase “governmental entity.” See Tex. Prop.Code Ann. § 21.0111 (West 2004) (requiring “governmental entity ... that wants to acquire real property” through eminent domain to disclose “existing appraisal reports” at time offer is made and before administrative hearing). Had the legislature intended for section 21.024 to also apply to governmental entities, it could have easily said so.

Even assuming that the definition of “critical infrastructure” can be read broadly enough to include the State, the Department, the Commission, and other governmental entities when those entities are exercising eminent domain for the purpose of creating or maintaining critical infrastructure such as a highway, section 21.024 provides a significant limitation to the types of critical-infrastructure entities that are required to disclose information. Section 21.024 applies only to those entities that are “authorized by law to take private property through the use of eminent domain.” Tex. Prop.Code Ann. § 21.024(a) (emphasis added). The State is not authorized by law to engage in eminent domain actions; rather, the State has an “inherent sovereign power of eminent domain.” See City of Carrollton v. Singer, 232 S.W.3d 790, 796 (Tex.App.-Fort Worth 2007, pet. denied). The Texas Constitution may limit the manner in which the power may be exercised, but it does not bestow that power onto the State. Id.; Whittington v. City of Austin, 174 S.W.3d 889, 898 (Tex.App.-Austin 2005, pet. denied); see also Tex. Const. art. I, § 17 (imposing requirement that property owner be given “adequate compensation” and that taking be done for “public use”). Similarly, the property code does not grant the power of eminent domain but instead provides “the procedure for instituting an eminent domain proceeding.” Singer, 232 S.W.3d at 797; see Tex. Transp. Code Ann. § 224.004(d) (West 1999) (explaining that property code “governs procedure for the eminent domain proceeding”).

Although the State has the inherent power to engage in eminent domain, the State uses this power by delegating its authority to the Department and other agencies. State v. Northborough Ctr., Inc., 987 S.W.2d 187, 189 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (explaining that in eminent domain proceeding, State acts “through the Texas Department of Transportation”). In other words, when the Department engages in eminent domain, it is exercising the State’s inherent sovereign right rather than employing a right “authorized by law.” Because the Commission “governs” the Department, Tex. Transp. Code Ann. § 201.201 (West 1999), it is similarly empowered to engage in eminent domain in “the name of the [Sjtate” and on “behalf of the [S]tate,” Tex. Transp. Code Ann. §§ 203.051 (West 1999), 224.004 (West 1999).

In light of the fact that the State, the Department, and the Commission are not entities that have been “authorized by law” to engage in eminent domain actions but are instead entities that either have or express an inherent, sovereign power of eminent domain, we must conclude that they are not governed by the requirements of section 21.024 of the property code. Because the trial court determined that section 21.024 applied and required the disclosures sought by the LeGuins, we conclude that the trial court abused its discretion. See In re Bustamante, 104 S.W.3d at 705 (explaining that trial courts abuse their discretion when they incorrectly analyze or apply governing law).

CONCLUSION

Having concluded that the district court abused its discretion by determining that section 21.024 applied and having determined that the State does not have an adequate remedy, we conditionally grant the State’s petition for writ of mandamus and direct the trial court to vacate its order requiring disclosure of the five categories of documents sought by the Le-Guins. We are confident that the trial court will comply, and our writ will only issue if it does not.

      . In their response, the LeGuins also refer to In re State, 65 S.W.3d 383 (Tex.App.-Tyler 2002, orig. proceeding), as support for their assertion that mandamus is not appropriate in this case. In that case, the special commissioners ordered the State to produce appraisal reports and records, and the trial court affirmed that request. Id. at 384. The State filed a mandamus, and relying on Blasin-game, the appellate court determined that the right to a trial de novo after the commissioners’ hearing afforded the State an adequate remedy. Id. at 387-88.
      In light of the preceding case, the LeGuins contend that we should adopt the reasoning employed by the Tyler Court of Appeals and conclude that the State in the present case has an adequate remedy by appeal. In reaching its conclusion, the Tyler court also noted that its determination that mandamus was not warranted was supported by the fact that there was "no contention that the actions of the trial court have caused or will cause irreparable harm.” Id. at 388. In the present case, however, the State has alleged that being forced to disclose the information sought will deprive the State of its substantial right to an expedited hearing during the administrative phase of a condemnation proceeding. Even assuming that the Tyler court’s opinion could be read as standing for the proposition that mandamus relief is not available to resolve any discovery disputes arising during the administrative phase, we would not be bound by that holding or by the analysis employed by the Tyler court.

      . The LeGuins assert that disclosure during the administrative hearing would "level the playing field by giving the landowner access to relevant information going into the administrative hearing, but will also increase the chances that those hearings will yield a quick and fair resolution.” Further, the LeGuins insist that construing section 21.024 as not applying to the State will not encourage pretrial settlements and will force landowners to choose between "settling without the benefit of information about their property in the State's possession or, alternatively, proceeding to trial and spending more money to discover” the information relied on by the State. See Tex. Prop.Code Ann. § 21.024 (West Supp.2009).
      Although releasing the requested information during the administrative phase would provide landowners with more information prior to trial, the release would be contrary to the State’s substantial right to a quick and inexpensive resolution during the administrative phase. See In re State, 85 S.W.3d 871, 876-77 (Tex.App.-Tyler 2002, orig. proceeding) (op. on reh'g). In fact, it might effectively negate the distinction between the administrative phase and a trial as it relates to costs and burdens imposed on the State. Moreover, delaying the release of the requested information until after the conclusion of the administrative portion imposes no additional burdens on landowners that are not present in other eminent domain contexts.

      . In their response, the LeGuins insist that section 21.024 of the property code applies when the condemning authority is "an entity,” when "the entity is ‘considered critical infrastructure,'" and when "the entity has condemnation power to take private property.” See Tex. Prop.Code Ann. § 21.024. In light of this characterization, the LeGuins insist that the State, the Commission, and the Department all qualify under section 21.024 of the property code. For the reasons discussed above, we disagree with their interpretation of section 21.024.
      The LeGuins also contend that in enacting section 21.024, the legislature could not have reasonably intended to treat governmental and non-governmental entities differently. In other words, the LeGuins insist that the legislature could not have desired to grant landowners the ability to seek information from a condemning authority "considered critical infrastructure” but not bestow that same right to landowners seeking information from the State. When confronted with an issue of statutory construction, we are simply charged with ascertaining what the legislature intended by enacting a statute; we are not tasked with determining whether the legislature correctly resolved the various competing public interests. Resolution of public interests is a task uniquely suited for the legislature. Although we need not determine whether the legislature’s decision to distinguish between governmental and non-governmental entities in this context appropriately settles the various conflicting interests, we do note that there could be compelling reasons for limiting the disclosure requirements to non-governmental entities that have been given the power of eminent domain.

      . The LeGuins argue that subsection 21.024(i) cannot support a conclusion that subsection 21.024(a) does not apply to the State, the Commission, or the Department. See Tex. Prop.Code Ann. § 21.024(a), (i). Essentially, they assert that subsection 21.024(a) applies to both governmental and non-governmental entities and that subsection 21.024(i) simply eliminates the possibility that a non-governmental entity will attempt to use an exception to disclosure under the Public Information Act as a basis for refusing to disclose the information required by section 21.024. See Tex. Gov’t Code Ann. § 552.0037 (West Supp. 2009) (explaining that non-governmental entities with power of eminent domain are subject to Act). Finally, they argue that section 21.024 cannot apply only to non-governmental entities because it unquestionably applies to utilities and common carriers, Tex. Prop. Code Ann. § 21.024(a), some of which are governmental entities.
      However, the language of subsection 21.024(i) undermines their first assertion. The language of that subsection does not exempt just non-governmental entities; rather, it exempts all of the entities described in subsection 21.024(a). Id. § 21.024(a); see Fireman's Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69 (Tex.2000) (explaining that courts analyze words actually used). Had the legislature intended subsection 21.024(i) to apply only to non-governmental entities, it could have easily said so. See USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d 491, 494 (Tex.App.-Austin 2004, pet. denied) (stating that courts must presume that words chosen and omitted were done so purposely). Moreover, were we to adopt the construction offered by the LeGuins, then we must conclude that the legislature was aware of the fact that 552.0037 of the government code does not address or apply to governmental entities but chose to exempt all entities (governmental and non-governmental) from the burdens and exemptions imposed by section 552.0037. See City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex.2010) (requiring courts to presume that legislature intended reasonable result).
      Regarding the assertion by the LeGuins that section 21.024 must apply to governmental and non-governmental entities because it specifically covers entities (e.g., utilities and common carriers) that can be governmental in nature, we are not confronted with making that determination here. Rather, we are asked to determine whether section 21.024 requires disclosure by the State, the Department, and the Commission. See Hagen v. Hagen, 282 S.W.3d 899, 901-02 (Tex.2009) (explaining that courts have no jurisdiction to issue advisory opinions). Even assuming that the LeGuins are correct when they state that common carriers and utilities can be governmental entities, that concession would not result in a determination that the definition of critical infrastructure includes the State, the Department, or the Commission. To the contrary, the legislature could have simply chosen to include certain types of governmental entities in the definition of "critical infrastructure" for the purposes of eminent domain.

      . When asserting that section 21.024 applies to governmental entities, the LeGuins refer to three cases that list section 21.024 as well as others when describing the statutory condemnation scheme. See Alewine v. City of Houston, 309 S.W.3d 771, 774 n. 2 (Tex.App.Houston [14th Dist.] 2010, pet. filed) (listing sections 21.001 to 21.065 of properly code as governing statutory scheme); City of Dallas v. Pacifico Partners, Ltd., 289 S.W.3d 371, 374 n. 1 (Tex.App.-Dallas 2009, no pet.) (identifying article I, section 17 of constitution and sections 21.012 to 21.024); AVM-HOU, Ltd. v. Capital Metro. Transp. Auth., 262 S.W.3d 574, 578 (Tex.App.-Austin 2008, no pet.) (stating that eminent domain action is "statutory cause of action" and citing sections 21.011 to 21.024 of property code). However, none of those cases explicitly state that section 21.024 requires disclosure by governmental entities and certainly does not say that disclosure is required during the administrative portion of a condemnation proceeding. In fact, when describing what statutes govern the administrative hearing and subsequent trial de novo, the Pacifico Partners court made no mention of section 21.024 and instead cited only to sections 21.012 through 21.018 of the property code. 289 S.W.3d at 374.

      . In their response, the LeGuins assert that the State improperly relies on and attached to its petition part of the legislative history for section 21.024 and various documents ostensibly explaining what is meant by the term "critical infrastructure.” Further, the Le-Guins filed a motion to strike the allegedly improper documents from the State’s appendix to its petition and any portion of the State’s petition "citing or relying” on the documents. In reaching our result, we do not rely on the documents that the LeGuins object to. See Tex. Gov’t Code Ann. § 311.023(3) (West 2005) (authorizing courts to consider statute’s legislative history when attempting to engage in statutory construction). Accordingly, we dismiss the motion to strike as moot.


author: JEFFREY V. BROWN, Justice.

text:
    CIRCLE X LAND AND CATTLE COMPANY, LTD., Appellant, v. MUMFORD INDEPENDENT SCHOOL DISTRICT, Appellee.
    No. 14-09-00330-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 16, 2010.

      Bill Payne, Bryan, Edward C. Small, Austin, for appellant.
    William Steven Steele, Bryan, Bryan F. Russ, Jr., Hearne, for Appellee.
    Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
   SUBSTITUTE OPINION ON REHEARING

JEFFREY V. BROWN, Justice.

We originally issued our opinion affirming the trial court’s judgment on August 31, 2010. Appellant Circle X Land & Cattle Company, Ltd., moved for rehearing. We overrule the motion for rehearing, vacate our August 31 judgment, withdraw our previous opinion, and issue this substitute opinion in its place. Our disposition of the appeal is unchanged.

This case arises out of a school district’s condemnation of thirty acres of ranch land in Robertson County. Circle X is appealing the trial court’s grant of Mumford Independent School District’s motion for partial summary judgment. Circle X contends the school district failed to meet its burden to prove as a matter of law it was entitled to the summary judgment because it did not establish there was a public purpose for the condemnation or that the condemnation of all thirty acres was necessary. Circle X argues that its response to the motion for partial summary judgment raised fact issues about whether the school district acted arbitrarily or capriciously in condemning the land. Finally, Circle X complains the trial court erred in including in its judgment a clause stating Circle X does not have the right to ingress and egress on the condemned property for the purpose of exploring, developing, drilling, or mining for oil and gas. We affirm.

I

In 2002, Mumford Independent School District and Robertson County expressed their desire to acquire thirty acres of land to develop a sports and recreation complex. When the county decided to withdraw from the deal, the school district did not proceed with the acquisition. But the school district revisited the idea three years later, and on August 11, 2005, its board of trustees voted to start condemnation proceedings. A panel of three special commissioners reviewed the district’s petition and approved the condemnation of thirty acres of Circle X’s land. Circle X sued in district court claiming the school district had acted arbitrarily and capriciously in deciding to condemn the land.

The school district filed a motion for partial summary judgment, which the trial court denied. But after the district moved for reconsideration, the trial court granted the motion. After the partial summary judgment was granted, the school district and Circle X agreed on the amount of just compensation for the thirty acres. The trial court then signed a final judgment in favor of the district. This appeal followed.

II

We review the trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Here, the appellee moved for a traditional summary judgment. See Tex.R. Civ. P. 166a(c). The party moving for a traditional summary judgment has the burden to show that no material fact issue exists and that it is entitled to summary judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). We will assume that all evidence favorable to the non-movant is true and indulge every reasonable inference in favor of the non-movant. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A non-movant has the burden to respond to a traditional summary-judgment motion if the movant conclusively (1) establishes each element of its cause of action or defense, or (2) negates at least one element of the non-movant’s cause of action or defense. See Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex.2004); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).

Although the school district claims in its brief that it moved for both a traditional and a no-evidence summary judgment, the motion itself is ambiguous. Compare Tex.R. Civ. P. 166a(c), with Tex.R. Civ. P. 166a(i). Circle X contends that because the district’s motion was ambiguous, we should construe it as a traditional motion for summary judgment. The two summary-judgment standards are distinct; therefore, we must determine which type of summary judgment is at issue. Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In Grimes v. Reynolds, we held “[s]ince a motion that does not clearly and unambiguously state it is being filed under Rule 166a(i) does not give the non-movant notice that the movant is seeking a no-evidence summary judgment, we will construe it as a traditional motion under Rule 166a(c).” Id. Here, as in Grimes, we will construe the summary judgment to be a traditional motion.

Additionally, when a motion for reconsideration or new trial is filed after a summary-judgment motion is heard and ruled upon, the trial court may ordinarily consider only the record as it existed before hearing the motion the first time. See Auten v. DJ Clark, Inc., 209 S.W.3d 695, 702 (Tex.App.-Houston [14th Dist.] 2006, no pet.); Chapman v. Mitsui Eng’g & Shipbuilding Co., 781 S.W.2d 312, 315 (Tex.App.-Houston [1st Dist.] 1989, writ denied). However, the trial court may consider evidence submitted with a motion for reconsideration so long as it affirmatively indicates in the record that it accepted or considered the evidence. Auten, 209 S.W.3d at 702; see also Tex.R. Civ. P. 166a(c) (summary-judgment evidence must be timely filed, “except on leave of court”).

Here, after the trial court originally denied the school district’s motion for partial summary judgment, it granted the motion to reconsider and rendered partial summary judgment. The court’s order reflects that in so doing, it “considered the affidavits and exhibits submitted by Con-demnor and Condemnee on the [motion for reconsideration] and the arguments and authority of counsel.” The trial court, therefore, considered the arguments and evidence presented in the motion to reconsider and response. Thus, we may review the same to determine whether the trial court erred in ultimately granting the school district’s motion for partial summary judgment. See Stephens v. Dolcefino, 126 S.W.3d 120, 133-34 (Tex.App.-Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex.2005).

A

Condemnation

The school district’s eminent-domain powers are statutorily derived from section 11.155 of the Texas Education Code. See Tex. Educ.Code § 11.155. Section 11.155(a) provides that “[a]n independent school district may, by exercise of the right of eminent domain, acquire the fee simple title to real property for the purpose of securing sites on which to construct school buildings or for any other purpose necessary for the district.” Id. § 11.155(a). A district court may determine all issues, including the authority to condemn property and assess damages, in any proceeding for eminent domain involving a political subdivision of the state. Tex. Prop.Code Ann. § 21.003 (Vernon 2004).

The Texas Supreme Court has held that private property may be taken only for public use. Borden v. Trespalacios Rice & Irrigation Co., 98 Tex. 494, 86 S.W. 11, 15 (1905). What is public use is a question of law. Tenngasco Gas Gather ing Co. v. Fischer, 653 S.W.2d 469, 474 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). But when the legislature delegates to an entity the power to condemn, and the entity condemns the property for public use, the extent to which the property is taken is a legislative question. Block House Mun. Util. Dist. v. City of Leander, 291 S.W.3d 537, 541 (Tex.App.-Austin 2009, no pet.); see Hous. Auth. of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 85-86 (1940); Harris County Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 316 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In other words, the legislative declaration that the use is presumptively public is binding on courts unless the use is “clearly and palpably” private. Higginbotham, 143 S.W.2d at 83. The entity’s power to condemn is subject to judicial review, however, when there is a showing of bad faith, arbitrary or capricious action, or abuse of discretion. Block House Mun. Util. Dist., 291 S.W.3d at 541; see Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 268-69 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

The Texas Supreme Court also has held that when a statute vests a governmental agency with discretionary authority to condemn, the agency’s determination of public necessity is presumptively correct. FKM P’ship, Ltd. v. Bd. of Regents of the Univ. of Houston Sys., 255 S.W.3d 619, 629 (Tex.2008). The condemnor generally determines how much land to take. Zboyan v. Far Hills Util. Dist., 221 S.W.3d 924, 930 (Tex.App.-Beaumont 2007, no pet.) If a statute delegating the eminent-domain power does not require proof of necessity, as is the case here, the condemnor need only show that its governing authority determined that the taking was necessary. See Pizzitola v. Houston Indep. Sch. Dist., No. 13-05-249-CV, 2006 WL 1360838, at *5 (Tex.App.-Corpus Christi May 18, 2006, no pet.) (mem.op.); Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 565 (Tex.App.-San Antonio 1999, pet. denied).

As with the “public use” requirement, this determination is conclusive unless there is a showing of bad faith, arbitrary or capricious action, or abuse of discretion. See FKM P’ship, Ltd., 255 S.W.3d at 629; Coastal Indus. Water Auth. v. Celanese Corp., 592 S.W.2d 597, 600 (Tex.1979). It is the non-movant’s burden, as the objecting party, to demonstrate that the school district’s action was arbitrary and capricious. Pizzitola, 2006 WL 1360838, at *5 (citing Austin v. City of Lubbock, 618 S.W.2d 552, 555 (Tex.Civ.App.-Amarillo 1981), rev’d on other grounds, 628 S.W.2d 49 (Tex.1982)). A condemnee can make this showing if he can negate any reasonable basis the condemnor had in determining what and how much land to condemn. Newsom, 171 S.W.3d at 269.

However, the existence of another feasible plan not requiring condemnation is no evidence of an abuse of discretion. Zboyan, 221 S.W.3d at 930. Additionally, it is not arbitrary or capricious to base a condemnation on a reasoned prediction of future need or demand. Pizzitola, 2006 WL 1360838, at *5 (citing Anderson v. Clajon Gas Co., 677 S.W.2d 702, 705 (Tex.App.-Houston [1st Dist.] 1984, no writ)). A condemnor also does not abuse its authority if it later changes its plans for the use of the land, and sells or devotes the excess to private use. Vilbig v. Hous. Auth. of City of Dallas, 287 S.W.2d 323, 330-31 (Tex.Civ.App.-Dallas 1955, writ ref'd n.r.e.). Furthermore, nothing in the condemnation statute prohibits the condemnor from altering its specific plan for the property after the commissioners’ hearing even if the new plan allegedly prejudices the landowner. See PR Invs. & Specialty Retailers, Inc. v. State, 251 S.W.3d 472, 476-79 (Tex.2008); see also Blasingame v. Krueger, 800 S.W.2d 391, 393-94 (Tex.App.-Houston [14th Dist.] 1990, no writ) (explaining evidence at a trial de novo is not limited to the evidence introduced at the commissioners’ hearing).

1

In its first issue, Circle X contends the school district failed to meet its summary-judgment burden to conclusively establish that its governing body determined that Circle X’s land was being taken for school purposes and that it was necessary. Specifically, Circle X contends that the only viable evidence the school district presented about the condemnation proceeding was the minutes reflecting the board of trustees’ decision to condemn the property. The minutes reflect that “the Board approved to start condemnation procedures (eminent domain) on 30 acres of land presently owned by Holmes Estate.” Circle X argues these minutes are vague and state no purpose for the condemnation. Circle X also contends that, like pleadings, Circle X’s affidavits cannot be evidence of an official action.

Although the minutes do not expressly state the condemnation’s purpose or necessity, the trial court properly considered all the evidence, including the affidavits, in concluding that the district in fact determined that the condemnation was for school purposes and a necessity. See Houston Lighting & Power Co. v. Fisher, 559 S.W.2d 682, 685-86 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.) (concluding that affidavits and depositions of condemnor entity’s officers demonstrated that entity’s board of directors made requisite determination of convenience and necessity); Pizzitola, 2006 WL 1360838, at *4-5 (reviewing, in addition to resolution, affidavits describing that the taking was appropriate, necessary, and in furtherance of a public purpose in concluding school district had articulated a reasonable and necessary public purpose for condemnation); see also Boucher v. Tex. Turnpike Auth., 317 S.W.2d 594, 601-02 (Tex.Civ.App.-Texarkana 1958, no writ) (holding affidavit of condemning entity’s engineer, along with certified copies of resolutions showing entity’s approval of a survey and appraisal and instructions to acquire property “by purchase, if possible, and if not, by condemnation” supported partial summary judgment in favor of condemnor against landowner alleging fraud and bad faith).

The district’s evidence in support of its motion for partial summary judgment included affidavits of Superintendent Bien-ski; Fred Patterson, a licensed architect employed by the district; and Anthony Scamardo, president of the district’s board of trustees. The district also submitted Patterson’s architectural drawings of the district’s new facilities and an email from an architecture firm to Bienski explaining why the district needed to condemn thirty acres. Additionally, attached to its motion for reconsideration, the district included a supplemental affidavit and more drawings by Patterson. The district contends Bien-ski’s, Scamardo’s, and Patterson’s affidavits all demonstrate the purposes of the land acquisition are within the meaning contemplated by the Texas Education Code.

In Bienski’s first affidavit, he notes the increase in the student population and the need for physical-education and sports facilities. He also attests the board of trustees wanted to use the land “for the future development of school facilities (e.g. classrooms).” Bienski goes on to explain that Patterson believed the project required a minimum of thirty acres. In his second affidavit, Bienski describes how and when the board of trustees decided to condemn the property. According to Bienski, the board expected an increase in future enrollment and decided a new high school was needed to accommodate the growth. Bienski adds: “From my experience, training and knowledge, I was aware that there were recommendations that a high school campus would have a minimum requirement of thirty (30) acres ... Based on this information, I recommended [that the board] purchase and[,] in the absence of purchase, seek by condemnation the thirty (30) acre tract.”

In Patterson’s first affidavit, he emphasizes that the optimum size for a high school is thirty acres and includes the drawings of the district’s proposed new facilities. He also states that he understands the board intends to use the land for the proposed sports and physical-education facilities. But he adds that if the district were unable to use the land for that purpose, Bienski told him it would be used for other educational purposes. In Patterson’s supplemental affidavit, he mentions the board’s plan to build a high school and includes a drawing featuring the new facility. Ultimately, Patterson attests to two proposed purposes for the condemned land — sports and recreation in the first affidavit and a new school in the second. Either purpose would be legitimate. See, e.g., Lin v. Houston Cmty. Coll. Sys., 948 S.W.2d 328, 333-34 (Tex.App.-Amarillo 1997, writ denied) (explaining although the school pleaded the condemnation purpose was only for “school purposes,” this was sufficient to allege its intended use).

Scamardo attests that on August 11, 2005, the board voted to condemn the thirty acres based on the long-range plans and educational needs of the district. According to Scamardo, the district’s need for outdoor sports facilities was immediate. But he adds that the board also sought the land for a future new high school. Additionally, he explains that based on the growth in the student population, the board of trustees also wanted to construct a separate high school.

To summarize, the school district’s summary-judgment evidence includes: (1) minutes reflecting the board of trustees’ decision to condemn the 30 acres; (2) Superintendent Bienski’s affidavits; (3) Patterson’s affidavits; and (4) board president Scamardo’s affidavit. In their affidavits, Bienski and Scamardo both attest to (1) specific facts about efforts the board made to determine the need for the condemnation, and (2) the board’s official act — ordering the condemnation to satisfy legitimate needs and purposes of the district. Circle X objected to none of the district’s evidence. We conclude this evidence conclusively shows that the district in fact determined that condemning Circle X’s land was for a school purpose and necessary. We therefore overrule Circle X’s first issue.

2

In its second issue, Circle X contends that it raised a fact issue concerning whether the district acted arbitrarily and capriciously when it approved the start of condemnation proceedings because: (1) a federal court had enjoined the district from accepting transfer students; (2) the land’s only purpose was for sports facilities, which did not warrant taking all thirty acres; and (3) even if the purpose were for constructing a high school, there is still no evidence to support the need for all thirty acres. Circle X argues that the school district never intended to use the land for anything other than sports and recreation.

Circle X’s summary-judgment evidence included the affidavit of Garcia Thibo-deaux, a reporter for the Hearne Democrat. In his affidavit, Thibodeaux recounts a newspaper article he wrote in 2002, a copy of which is attached to his affidavit. The article featured a statement by Paul Bienski, the district’s superintendent. Bienski conceded that the district did not need the entire sports complex — just the baseball and softball fields. Circle X’s proof also included the affidavit of Jim Singleton, a licensed architect, who opined that 5.5 acres would be enough for just baseball and softball fields. But even if the initial use of Circle X’s land may have been for sporting facilities, it is not arbitrary or capricious for the district to acquire land in anticipation of future needs. See Pizzitola, 2006 WL 1360838, at *5.

Another justification the district gave was the need for a new high school. Circle X argues there is no evidence to support such a need. And even if there were, Circle X continues, there is no evidence a new school would require thirty acres. Circle X maintains a federal-court ruling extinguished the district’s new-high-school rationale. For many years leading up to the condemnation, a majority of the district’s students were transferred from the Hearne Independent School District. Once a federal district court enjoined such transfers, Circle X argues, the district could no longer prove that it was growing or in need of new classroom space. Circle X also included in its summary-judgment evidence the affidavits of Tommy Cowan, a licensed architect, and Gary Marek, a facility and transportation manager for the Texas Education Agency. Both affiants disputed the notion that a new high school for the district would require thirty acres.

Circle X’s reliance on the Cowan and Marek affidavits is unavailing. Both affidavits dispute the existence of an industry standard requiring thirty acres for any new high school. But neither addressed the circumstances of this case specifically enough to raise a fact issue concerning whether the district had acted in an arbitrary and capricious manner. Moreover, it does not matter that the district changed its plan from a thirty-acre sports complex to a thirty-acre sports complex and new high school; nothing in the condemnation statute prohibits the condemnor from changing its specific plan for the property after the commissioners’ hearing, even if the change allegedly prejudices the landowner. PR Invs. & Specialty Retailers, Inc., 251 S.W.3d at 476-79. The amount of land remained the same and the new intended use was still allowable under the statute — “for the purpose of securing sites on which to construct school buildings or for any other purpose necessary for the district.” See Tex. Educ.Code Ann. § 11.155(a).

We conclude that Circle X failed to satisfy its burden to show the district’s taking was arbitrary and capricious. Accordingly, we overrule Circle X’s second issue.

B

Ingress and Egress

Circle X also argues the language in the trial court’s judgment concerning its right to ingress and egress for the purpose of exploring, developing, drilling, or mining for oil and gas is not supported by any evidence. Because it does not own the mineral rights, Circle X contends the language is inappropriate and should be stricken from the judgment. The district responds that if Circle X does not have any minerals rights, then the language has no effect and is harmless.

Circle X complains the language is confusing and allows the district to preclude any right of use of the surface for mineral development; however, the language still pertains only to the ingress and egress rights, if any, that Circle X owns. The final judgment provides:

Condemnor shall be vested with and shall have and recover of and from Con-demnee all the fee simple absolute title and all right, title and interest for the purposes authorized under Section 11.155(a) of the Texas Education Code, providing that there is excluded from said estate all oil, gas and sulfur, which can removed from beneath the land, if any, without any rights whatsoever remaining to Condemnee of ingress and egress to and from the surface of the land for the purpose of exploring, developing, drilling, or mining same so as not to interfere with the improvements placed by Condemnor on said surface estate.

If Circle X is not the mineral owner, and therefore does not have any right to ingress or egress for development, exploring, drilling, or mining oil and gas, then this language in the judgment does not negatively affect Circle X. The language likewise does not negatively affect the actual owner of the mineral rights, because it expressly applies only to the condemnee— Circle X. Though it is inarticulately worded, we read the judgment to exclude Circle X’s right, if any, to ingress and egress on the property for purposes of development, exploring, drilling, or mining oil and gas. Because Circle X has no such right anyway, and because it has not cited any authority compelling us to alter the language, we overrule Circle X’s third issue. Tex.R.App. P. 38.1 (i).

For the foregoing reasons, we affirm the trial court’s judgment.

      . Furthermore, during oral argument, the school district's counsel conceded the motion for partial summary judgment invoked only the traditional summary-judgment standard.

      . Neither party has complained that the trial court considered any evidence that it should not have. Both parties supplemented the summary-judgment record at the motion-for-reconsideration stage without objecting to any untimeliness of the other’s filings or any lack of notice.

      . One prominent exception to this general rule is Harris County, where the legislature has vested this authority exclusively in the county civil courts at law. Tex. Gov’t Code § 25.1032(c) (Vernon 2004); Taub v. Aguila Sw. Pipeline Corp., 93 S.W.3d 451, 456 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

      . The term "public use” has been defined various ways, and the Texas Supreme Court has construed “public use” liberally. See Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 833 (1958). Nevertheless, "public use” need not be defined liberally to encompass the taking of land for public education. The preeminent importance our state places on public education dates back to the days of the Republic of Texas. See Repub. Tex. Const. of 1836, General Provisions, § 5, reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897, at 1069, 1078-79 (Austin, Gammel Book Co. 1898). We are aware of and sensitive to the constitutional controversies that erupt when courts define "public use” too liberally; but as there are few public uses more legitimate than the construction of facilities for public education, no such concern arises here, aside from the evidentiary determination we address below. "It is admitted by all that the cultivated mind is the guardian genius of democracy and, while guided and controlled by virtue, is the noblest attribute of man.” Mirabeau B. Lamar, "the father of Texas education,” address to Congress, 1838, quoted in Steven A. Jent, A Browser's Book of Texas Quotations 46 (2001).

      . This contention is the thrust of Circle X’s argument in its motion for rehearing. Circle X maintains that when summary-judgment motions are heard in eminent-domain cases, only official proceedings, such as orders, resolutions, and minutes, may suffice as evidence of a condemning entity's official action. In making this argument, Circle X relies on Whittington v. City of Austin, 174 S.W.3d 889, 900 (Tex.App.-Austin 2005, pet. denied), and Horton v. Mills County, 468 S.W.2d 876, 877-78 (Tex.Civ.App.-Austin 1971, no writ). Yet neither Whittington nor Horton holds that affidavits in which qualified affiants attest to official acts are incapable of demonstrating public use or necessity. Indeed, in Whitting-ton the only evidence of the public use the condemning entity offered was its pleadings, which plainly cannot be used as summary-judgment evidence. Whittington, 174 S.W.3d at 900. Furthermore, neither the statute under which the school district condemned Circle X’s land, Tex. Educ.Code § 11.155, nor the eminent-domain statute itself, Tex. Prop. Code §§ 21.011-016, states any specific requirement for the type of evidence necessary to prevail either at trial or on summary judgment. We will not add such a requirement here; it is not our realm to legislate, but only to apply the law. Finally, as set forth below, this court and others have long held evidence like that the school district submitted in this case sufficient to show the lawful exercise of eminent domain.

      . Because Circle X did not object to the district's affidavits, they are deemed to satisfy Rule 166a's requirement that affidavits "s et forth such facts as would be admissible in evidence.” See Tex.R. Civ. P. 166a(f); see also Dolenz v. A.B., 742 S.W.2d 82, 83-84 n. 2 (Tex.App.-Dallas 1987, writ denied). To the extent Circle X contends the affidavits are incompetent to prove official acts by the school district's board — because of some defect of form — Circle X should have objected and obtained rulings on those objections in the trial court. Id. As it stands, the affidavits are evidence of exactly what the school district needs evidence of: an official determination by the district’s board "that the taking was necessary to advance its intended public use.” Whittington, 174 S.W.3d at 904.


author: BOB PEMBERTON, Justice.

text:
    GREEN TREE SERVICING, LLC, Appellant, v. 1997 CIRCLE N RANCH LIMITED, Appellee.
    No. 03-09-00258-CV.
    Court of Appeals of Texas, Austin.
    Nov. 18, 2010.

      Richard A. McKinney, Higier, Allen & Lautin, P.C., Addison, TX, for appellant.
    W.W. McNeal, III, McNeal, Garner & Lippe, P.L.L.C., Lockhart, TX, for appel-lee.
    Before Chief Justice JONES, Justices PURYEAR and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

The principal issue presented in this appeal is whether subchapter I of finance code chapter 347 creates a cause of action whereby the owner of land leased to the owner of a manufactured home can recover unpaid rentals from a creditor of the homeowner who forecloses on the home and sells it to a third party. We conclude that subchapter I provides the landowner only a possessory lien in the manufactured home under those circumstances, not a cause of action through which it can hold the creditor personally liable. Because the judgment below awarded damages predicated solely on a purported cause of action under subchapter I, we must reverse and render judgment that the landowner take nothing.

The underlying events involve seven manufactured homes that, at relevant times, were situated on lots owned by appellee 1997 Circle N Ranch Limited (Circle N) pursuant to leases. Each owner of these manufactured homes at the time had financed their purchase with a loan serviced by appellant Green Tree Servicing, LLC (Green Tree) and secured by a lien on the home. Ultimately, each owner defaulted on his or her loan obligations and ceased to occupy the home. Pursuant to the security instruments and the U.C.C., Green Tree sold each of the seven manufactured homes “as is and where is” to third-party purchasers. Thereafter, some of the manufactured homes remained on Circle N’s property, with no lot rentals being paid, for what in some instances proved to be weeks, months, or even years before their third-party purchasers eventually removed them.

The legislature has addressed the respective rights of creditors and property owners under such circumstance in chapter 347, subchapter I of the finance code. See generally Tex. Fin.Code Ann. § 347.401-.404 (West 2006). Because this statutory framework provides the context for the parties’ ensuing dispute and proceedings below, it is helpful to review it before continuing with our discussion of the case’s factual and procedural history.

Subchapter I is titled, “Security Interests in Manufactured Homes,” and its first provision, section 347.401, sets forth a general rule that “[e]xcept as provided by this subchapter, a lien or charge against a manufactured home for unpaid rental of the real property on which the manufactured home is or has been located is subordinate to the rights of a creditor with a security interest or lien that is: (1) perfected under this chapter; and (2) recorded on the document of title issued with the manufactured home.” Tex. Fin.Code Ann. § 347.401. However, section 347.402 of the finance code, titled “Possessory Lien,” creates the following exception to section 347.401:

(a) The owner of the real property on which a manufactured home is or has been located and for which rental charges have not been paid has a possessory lien that is not subject to Section 347.401 to secure rental charges if:
(1) the creditor described by Section 347.401 repossesses the manufactured home when the charges have not been paid; and
(2) the owner of the real property has mailed to the creditor by certified mail, return receipt requested, written notice of the unpaid charges.

Id. § 347.402(a). Subsection (b) of section 347.402, in turn, establishes the accrual period for rental charges that “[t]he pos-sessory lien secures,” while subsection (c) establishes “[t]he maximum daily rental charge that is secured by the possessory lien.” See id. § 347.402(b) & (c). The accrual period for rental charges secured by the “possessory lien” begins on a date at least 15 days after the date the “creditor” receives the required written notice of the unpaid charges. See id. § 347.402(b). The maximum daily rental charge that is secured by the possessory lien is equal to one-thirtieth of the monthly rental charge last paid by the consumer. See id. § 347.402(c).

Next, finance code section 347.403 provides:

In addition to the recovery of the rental charges, the owner of real property who is required to retain legal counsel to recover the amounts subject to the pos-sessory lien under Section 347.402 is entitled to recover:
(1) other actual damages;
(2) attorney’s fees; and
(3) court costs.

See id. § 347.403. On the other hand, the next and final provision in subchapter I, section 347.404 of the finance code, provides that “[ujnless an owner of real property has a possessory lien that has priority under Section 347.402, the owner of the real property may not refuse to allow a creditor to repossess and move the manufactured home.” Id. § 347.404(a). If an owner of real property “unlawfully refuses to allow the creditor to repossess and move the manufactured home,” the owner is liable to the creditor for:

(1) an amount computed for each day that the owner of the real property maintains possession of the home equal to one-thirtieth of the monthly payment last paid by the consumer on the credit transaction;
(2) other actual or exemplary damages;
(3) attorney’s fees;
(4) court costs; and
(5) any injunctive relief ordered by a court.

Id. § 347.404(b).

There is no dispute that Green Tree was a “creditor” and Circle N a “property owner” with respect to each of the seven manufactured homes at issue and that their respective rights regarding the homes were thus governed by subchapter I. It is likewise undisputed that Circle N mailed Green Tree the “written notice” of the unpaid rental charges on each home required by section 347.402(a)(2), and that Green Tree “repossessed” each home within the meaning of section 347.402(a)(1), giving Circle N a “possessory lien” in each home under section 347.402, subsection (a). See id. § 347.402(a).

The underlying dispute arose when Circle N, having invoked section 347.402, sought to recover from Green Tree the unpaid rentals secured by its possessory liens. Circle N ultimately sued Green Tree in district court to recover the unpaid rentals. Circle N’s claims were predicated exclusively on what it contended was a cause of action under subsection I whereby Green Tree was made personally liable for the amount of unpaid rentals determined by the methodology in subsections (b) and (c) of section 347.402, plus attorney’s fees and court costs as provided in section 347.403. See id. §§ 347.402, .403. Green Tree, in response, maintained that sub-chapter I gave Circle N only a possessory lien in each manufactured home to secure the amount of unpaid rentals determined under subsections (b) and (c) of section 347.402, but did not make Green Tree personally liable for the unpaid rental amounts secured by the liens. Because it had previously sold each of the homes to third parties, Green Tree insisted, Circle N’s remedies, if any, lay against those other parties, or whoever might possess the homes now, rather than Green Tree.

The parties stipulated to many of the underlying facts, including the dates on which rental charges would begin accruing for each home under section 347.042, subsection (b), and the respective maximum daily rental charges under subsection (c). See id. §§ 347.402(b), (c). The case proceeded to a bench trial. After hearing evidence, the district court awarded Circle N $23,053.36 on its “rental claim,” plus attorney’s fees and court costs. It subsequently entered findings of fact and conclusion of law. The findings and conclusions reflect that the court adopted Circle N’s view that subchapter I creates a cause of action through which it could recover from Green Tree personally the unpaid rental amounts determined under section 347.402(b) and (c), plus attorney’s fees and court costs as provided in section 347.403. The findings further reflect that the $23,053.36 “rental” award was predicated on the parties’ stipulations regarding the rental accrual dates and maximum daily charges under section 347.402(b) and (c), along with the court’s findings as to the date each home was finally removed from Circle N’s property by its third-party purchaser. Although this methodology had the effect of imposing liability on Green Tree for unpaid rentals accruing on the homes even after it had sold them, the district court made findings and conclusions to the effect that Green Tree should nonetheless be liable for these amounts because the third-party purchasers acted as Green Tree’s agents with respect to removing the homes from Circle N’s property.

Green Tree appealed. It brings six issues, the first four of which challenge the district court’s conclusions that subchapter I created a cause of action through which it could be held personally liable to Circle N for unpaid rental amounts. Our disposition of these issues turns on our construction of subchapter I. Statutory construction presents a question of law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective in statutory construction is to give effect to the legislature’s intent. See id. We seek that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006). “Where text is clear, text is determinative of that intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g) (citing Shumake, 199 S.W.3d at 284); Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651-52 (Tex.2006)). We consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 822, 327 (Tex.2002). We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from context, or unless such a construction leads to absurd results. See Entergy Gulf States, Inc., 282 S.W.3d at 437; City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex.2008); see also Tex. Gov’t Code Ann. § 311.011 (West 2005) (“Words and phrases shall be read in context and construed according to the rules of grammar and common usage,” but “[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”). We also read every word, phrase, and expression in a statute as if it were deliberately chosen, and likewise presume that words excluded from the statute are done so purposefully. See Shook v. Walden, 304 S.W.3d 910, 917 (Tex.App.Austin 2010, no pet.). Our analysis of the statutory text is also informed by the presumptions that “the entire statute is intended to be effective” and that “a just and reasonable result is intended,” Tex. Gov’t Code Ann. § 311.021(2), (3) (West 2005), and consideration of such matters as “the object sought to be attained,” “circumstances under which the statute was enacted,” legislative history, “common law or former statutory provisions, including laws on the same or similar subjects,” “consequences of a particular construction,” and the enactment’s “title.” Id. § 311.023(1)-(5), (7) (West 2005). Similarly, we assume that when enacting a statute, the legislature was aware of the background law and acted with reference to it. See Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex.1990). However, only when the statutory text is ambiguous “do we ‘resort to rules of construction or extrinsic aids.’ ” Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re Estate of Nash, 220 S.W.3d 914, 917 (Tex.2007)).

The cornerstone of subchapter I’s remedies for property owners is section 347.402. Reflecting section 347.402’s focus is its title: “Possessory Lien.” See Tex. Gov’t Code Ann. § 311.023(7). On its face, section 347.402 purports only to create a “possessory lien” in favor of the property owner when the conditions of subsection (a) are met. See Tex. Fin.Code Ann. § 347.402. If the conditions are met, subsection (a) provides that the property owner “has a possessory lien that is not subject to Section 347.401 to secure rental charges.” Id. § 347.402(a) (emphasis added). In turn, subsection (b) of section 347.402 provides that “[t]he possessory lien secures rental charges that begin to accrue” and sets forth a methodology for determining that date. Id. § 347.402(b). Similarly, subsection (c) establishes “[t]he maximum daily rental charge that is secured by the possessory lien.” Id. § 347.402(c) (emphases added).

A “possessory lien” is a type of claim or security interest in specific property that permits a creditor to take and retain possession of the property until a debt or obligation is satisfied. See Black’s Law Dictionary 1008, 425 (9th ed. 2009) (defining “possessory lien” as “[a] lien allowing the creditor to keep possession of the encumbered property until the debt is satisfied” and “lien creditor” as “[a] creditor whose claim is secured by a lien on the debtor’s property”). Thus, section 347.402 grants a property owner a claim or security interest in a manufactured home — in derogation of the general rule in section 347.401 giving the creditor priority — that permits the owner to take and retain possession of the home until the owner is paid the rental charges provided under subsections (b) and (c). See Tex. Fin.Code Ann. § 347.402. The nature and function of the possessory lien is further illustrated by section 347.404, which explicitly prohibits a property owner not having “a possessory lien that has priority under Section 347.402” from “refus[ing] to allow a creditor to repossess and move the manufactured home” and imposes liability on a property owner “who unlawfully refuses to allow the creditor to repossess and move the manufactured home.” Id. § 347.404.

While creating a “possessory lien” against specific property — the manufactured home — section 347.402 does not purport to create a cause of action against or impose liability upon the creditor or any other specific person for the unpaid rental amounts secured by the lien. See id. § 347.402. Section 347.402 thus stands in contrast to section 347.404, in which the legislature made “[a]n owner of real property who unlawfully refuses to allow the creditor to repossess and move the manufactured home liable to the creditor” for specified damages, fees, and costs. Id. § 347.404; see also Shook, 304 S.W.3d at 917 (we read every word, phrase, and expression in statute as if it were deliberately chosen, and likewise presume that words excluded from statute are done so purposefully).

In contending that subchapter I creates a cause of action imposing personal liability on the creditor for the rental charges determined under section 347.402(b) and (c), Circle N urges that section 347.403, when read in conjunction with section 347.402, evidences legislative intent to create a cause of action whereby property owners can recover rental charges from creditors. It emphasizes that section 347.003 states that “[i]n addition to the recovery of the rental charges,” a property owner “who is required to retain legal counsel to recover the amounts subject to the possessory lien under Section 347.402” can recover “other actual damages,” attorney’s fees, and court costs. See id. § 347.403 (emphases added). By equating the “rental charges” with “actual damages” and authorizing their “recovery,” Circle N reasons, the legislature contemplated a cause of action whereby property owners could recover rental charges from creditors as damages. We disagree.

As in section 347.402, the legislature in section 347.403 did not purport to create a claim or remedy against creditors or any particular person. Instead, section 347.403 contemplates a proceeding in which the property owner enforces his or her possessory lien against the manufactured home. See id. § 347.403 (“the owner of real property who is required to retain legal counsel to recover the amounts subject to the possessory lien under Section 347.402”). In this way, section 347.403 corresponds to section 347.402, which creates a possessory lien against the property — the manufactured home, wherever it might be — rather than a particular party. Cf. id. § 347.404.

But, Circle N further asserts, sub-chapter I must create a cause of action against creditors for unpaid rentals because if it were otherwise, it would provide no protection for the property owner’s interests despite the legislature’s obvious concern for those interests. In construing statutes, however, “[w]e do not imply a right of enforcement just because a person has suffered harm from the violation of a statute; we look to the intent of the Legislature as expressed in the language of the statute.” See Exxon Corp. v. Emerald Oil & Gas Co., L.C., No. 05-0729, 2009 WL 795760, 2009 Tex. LEXIS 114, at *13 (Tex. Mar. 27, 2009, reh’g granted) (citing Brown v. De La Cruz, 156 S.W.3d 560, 567 (Tex.2004)). Circle N focuses on the requirement that a creditor must “repossess” the manufactured home in order for the “possessory lien” to arise. See Tex. Fin.Code Ann. § 347.402(a)(1). “Repossession,” in Circle N’s view, refers to the creditor’s act of taking actual physical possession of the manufactured home and moving it off the property. Consequently, Circle N urges, the property owner’s “pos-sessory lien” created by “repossession” would “evaporate” or become unenforceable at the very same instant that section 847.402(a) says it would arise. The legislature could not possibly have intended to protect property owners with a “possesso-ry lien” that is a nullity, Circle N reasons. See Tex. Gov’t Code Ann. § 811.021(2), (3) (we presume that “the entire statute is intended to be effective” and that “a just and reasonable result is intended”); see also Entergy Gulf States, Inc., 282 S.W.3d at 437 (recognizing “absurd results” limitation on literal reading of statutory text where legislature could not possibly have intended such interpretation). We disagree with both Circle N’s underlying premise and the implications it derives for our construction of subchapter I.

Leaving aside whether the legislature intended the narrow definition of “repossession” in section 347.402(a)(1) that Circle N proposes, Circle N’s argument is premised on an erroneous assumption that the possessory lien created by the statute would automatically become ineffective if the manufactured home were removed from the owner’s property by the creditor or third party. To the contrary, a possessory lien, as a general principle, is not lost by the bare fact that another person removed or took possession of the property; instead, possession must be voluntarily relinquished by the lienholder. See Garcia v. Rutledge, 649 S.W.2d 307, 311 (Tex.App.-Amarillo 1982, no writ) (explaining that right to statutory possessory mechanics’ lien is lost upon voluntary, non-fraudulent delivery of vehicle to owner). This general principle must inform our assessment of the legislature’s intent in section 347.402. See Acker, 790 S.W.2d at 301 (we assume that legislature was aware of background law and acted with reference to it when enacting a statute). Moreover, the text of section 347.402 explicitly reflects that the legislature contemplated that the possessory lien would be effective in instances where the manufactured home had already been removed from the owner’s property. See Tex. Fin.Code Ann. § 347.402(a) (“The owner of the real property on which a manufactured home is or has been located ... has a possessory lien ....”) (emphasis added); see also id. § 347.401 (stating the general rule that “a lien or charge against the manufactured home for unpaid rental of the real property on which the manufactured home is or has been located” is subordinate to the creditor’s rights) (emphasis added). In short, we cannot agree with Circle N’s rationale for construing section 347.402 to provide a remedy appearing nowhere in the provision’s text. See T.C.R. v. Bell County Dist. Attorney’s Office, 305 S.W.3d 661, 671 (Tex.App.-Austin 2009, no pet.).

We conclude that the legislature did not create a cause of action in subchap-ter I through which Circle N could recover personally from Green Tree for unpaid rental amounts. Circle N emphasizes various perceived inequities and practical difficulties it faced in enforcing its possessory liens where, as here, the creditor sells the manufactured homes in place to third-party purchasers. Circle N complains that it had no practicable means to determine that Green Tree had sold the homes, who the third-party purchasers were, or that the purchasers would be removing the homes from Circle N’s property. Circle N further insinuates that Green Tree opted to sell the manufactured homes in place in a calculated attempt to avoid Circle N’s possessory lien, an allegation Green Tree denies. Whatever merit these complaints might have, we are constrained, first, by the narrowness of Circle N’s claim for relief. Both in the district court and on appeal, Circle N has relied exclusively on a purported cause of action under subchap-ter I whereby Green Tree is made personally liable for the unpaid rentals. We express no opinion regarding whether Circle N might have had any other statutory or common-law remedies against Green Tree or other parties in regard to the seven manufactured homes at issue, as that question is not before us. More importantly, we are further constrained by the words the legislature has chosen in subchapter I, and any remedy from the consequences of the legislature’s choices must lie in that governmental branch rather than this one. See T.C.R., 305 S.W.3d at 672 (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920) (“Courts ... must take statutes as they find them.... They are not the law-making body. They are not responsible for omissions in legislation. They are responsible for a true and fan-interpretation of the written law....”)). We sustain Green Tree’s first through fourth issues.

In its fifth issue, Green Tree challenges the sufficiency of the evidence supporting the district court’s findings and conclusions that the third-party purchasers of each manufactured home acted as Green Tree’s agents with respect to removing the home from Circle N’s property. In its sixth and final issue, Green Tree complains about the district court’s calculation of rentals for two of the homes where, it asserts, “Circle N obtained Justice Court judgments which allowed Circle N to have the homes removed at no cost to Circle N.” Having sustained Green Tree’s first four issues, entitling it to reversal and rendition of a take-nothing judgment, we need not reach these remaining issues. See Tex.R.App. P. 47.1.

We reverse the district court’s judgment and render judgment that Circle N take nothing on its claims against Green Tree.

      . See Tex. Fin.Code Ann. § 347.002(4) (West 2006) (defining "creditor” under chapter 347). Nor is there any dispute that the seven manufactured homes at issue come within chapter 347’s definition of "manufactured home," see id. § 347.001(5) (West 2006), or that each of the manufactured homes' owners who were parties to the loan agreements Green Tree serviced were "consumers” within the meaning of the chapter. See id. § 347.001(2) (West 2006).

      . However, as discussed below, the parties diverge as to precisely when and how such "repossession” by Green Tree occurred.

      . The district court concluded that "[b]y making sales to third-party purchasers of the manufactured homes while they remained on the properly of [Circle N], Green Tree Servicing, L.L.C. exercised dominion and control over the manufactured homes ... [and] constituted repossession of the manufactured homes within the meaning of § 347.401(a)(1) of the Texas Finance Code.” Green Tree similarly argues that it "repossessed” each home when it began attempting to sell them. We need not determine which event constituted "repossession.”

      . In fact, the district court made findings that Circle N had not voluntarily surrendered possession of the manufactured homes to Green Tree or the third-party purchasers who removed them. It similarly concluded that the homes’ removal by their third-party purchasers did not constitute voluntary delivery.

      . Among other things, Green Tree observes that its sales agreements included language purporting to make the purchaser responsible for any unpaid rentals.