The Supreme Court of Texas granted Jackson Walker client Hidalgo County Water Improvement District No. 3’s petition for review on an important eminent domain appeal, which addresses what happens when one condemning authority seeks to use another public entity’s land. The Court is set to hear oral argument in this case on January 12, 2023.

On appeal from the Thirteenth Court of Appeals in Edinburg, Texas, the dispute addresses whether court-created common law immunity applies in eminent domain cases, displacing the longstanding paramount public purpose doctrine’s application to instances like this in which the Legislature has permitted two condemning authorities to use the same land. Under the doctrine, competing or overlapping uses of public property are permitted if the second proposed use would not disturb the first; and the second use may be prohibited only if the first-in-time entity shows that the second use would destroy the first and that the first use is of paramount public purpose. In this way (and for well over 100 years), the public receives the maximum value from its public property when it is possible to accommodate multiple uses. When cooperation is not possible, the paramount use prevails.

If immunity applies, however, the first-in-time public entity may unilaterally prevent a second proposed public project regardless of whether the two can coexist and even when the second proposed project would be of paramount importance to the public. Immunity would effectively nullify the Legislature’s grant of applicable condemning authority to the second-in-time entity and would inevitably result in the condemnation of more private land for public projects. As a result, important public projects would be stalled or stymied altogether, public land would not be used to its full potential, and second-in-time entities seeking property to complete their projects would be forced to take additional, otherwise unnecessary private property.

With the Texas Supreme Court set to hear the case, the Court will be able to resolve widespread confusion among the lower courts about whether immunity applies in condemnation actions.

The Jackson Walker team representing Hidalgo County Water Improvement District No. 3 is led by Appellate Practice Chair Jennifer Caughey and includes partner Brad Anderson and senior counsel Danica Milios. Local counsel Frank Weathered and Randolph K. Whittington also represent District No. 3 on appeal.

The case is Hidalgo County Water Improvement District No. 3 v. Hidalgo County Irrigation District No. 1, case number 21-0507, in the Texas Supreme Court. The case was dismissed on immunity grounds by the County Court at Law No. 4 and was appealed to the 13th Court of Appeals.

Meet Our Team

Jennifer Caughey is a former Justice on Texas’s First Court of Appeals, a partner at Jackson Walker, and current chair of Jackson Walker’s appellate section. Justice Caughey leverages her diverse experience on both sides of the bench to litigate complex cases at the appellate and trial levels. She is recognized by Chambers USA: America’s Leading Lawyers for Business in the area of Litigation: Appellate – Texas and among Thomson Reuters’ Super Lawyers in the area of Appellate Law.

Brad Anderson is an eminent domain attorney with extensive experience representing condemning authorities and landowners throughout the state of Texas. Brad has extensive experience in every area of the land acquisition process and advises clients on the legal, political, and practical challenges that come with voluntary and involuntary land acquisition.

Danica L. Milios has over 20 years of appellate experience. She spent 17 years at the Texas Attorney General’s Office, where she began her career as a trial lawyer before ultimately moving to an appellate practice in the Office of the Solicitor General. There, Danica served 3 years as Deputy Solicitor General.

Meet JW

Since 1887, Jackson Walker has grown to become a full-service national firm serving clients from seven Texas offices. With about 30% of the firm’s more than 450 attorneys practicing litigation, JW has one of the largest trial practices in the Southwest and has been identified among the top law firms “Most Feared in Litigation” by BTI Consulting Group in 2022 and 2023 for demonstrating a “fearless nature, urgency, relentlessness, and an aggressive strategy.” To explore the Firm’s experience representing clients in condemnation and eminent domain litigation, visit the Trial & Appellate Litigation practice page.