A&M appeal in eminent domain case shot down, county plans to plow parts of state forest

David Yates Jun. 23, 2009, 11:46am

In an ironic twist, sections of a forest that Texas A&M University and the state of Texas dedicated to the study of forestry are now in danger of deforestation – thanks to an appellate ruling, eminent domain and a county's desire to build a highway.

In July 2007, Montgomery County filed its petition and statement in condemnation against A&M and Texas, alleging that the parties could not agree on the value of 1,633.1 acres of land held by the university and state.

The tracts of land in question are part of W. G. Jones State Forest.

Court papers show that the land is situated in Montgomery County and is used to teach students about forestry, which is the science or skill of planting and growing trees or managing forests for commercial purposes.

"Acquisition of the property is a public necessity and is designed for public use for road and highway purposes," the county's suit states, adding that the highway construction project includes widening FM 1488 through the Jones State Forest.

Soon after the suit was filed, special commissioners were appointed to determine the value of the land. The group totaled the plot's worth at $40,742, court papers say.

A&M and the state objected and filed a motion to compel production of appraisal reports prepared by two real estate appraisers for any properties within 1,000 feet of FM 1488 and within five miles of the property.

The university and state contended that unless the discovery is compelled, their ability to make a convincing presentation of their claims and defenses would be severely compromised because they will be unable to adequately cross-examine the expert witnesses on the issues of value and damages, court papers say.

The motion was denied by Montgomery County Judge Jerry Winfree, county court-at-law No. 2.

The defendants appealed and sought a mandamus review of the judge's denial of their motion to compel production of documents.

On appeal to the Texas Ninth District Court of Appeals, Montgomery County argued that the 39 properties at issue are not comparable and the reports are not necessary to the defendants' effective cross-examination of the county's witnesses, court papers say.

"We deny the petition for writ of mandamus," states a per curiam opinion released on June 11.

"The relators have not shown that the benefits of a mandamus review in this case outweigh the detriments of pre-trial review of the trial court's ruling on the relators' (A&M's and the state's) motion to compel. Accordingly, we deny the petition for writ of mandamus."

The state and university are represented in part by attorney Richard D. Naylor and Attorney General Greg Abbott.

The county is represented in part by attorneys J. Mark Breeding and Paul S. Radich.

Appeals case No. 09-09-00216
Trial case No. 07-07-06965

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