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Click here for the full text of this decision FACTS: In connection with the voter-approved construction of the Bayport Terminal Project, the Port of Houston Authority sued two private landowners to condemn 49 acres of their property, all of which lies within the city of Seabrook, and to acquire fee simple title to it. A panel of special commissioners appraised the property’s value at $627,397 and filed the award with the trial court. The landowners objected. Seabrook intervened in the suit between the PHA and the landowners. Alleging it had standing to intervene pursuant to the Water Code, Seabrook argued it had not consented to the condemnation. The trial court overruled PHA’s motion to strike, which was based on the argument that the city had not been a party to the administrative portion of the condemnation proceeding and that the Water Code provision was inapplicable. The landowners and Seabrook filed a joint plea to the trial court’s jurisdiction. They argued that the Water Code provision requires the city’s consent to the condemnation, and without it, the trial court has not subject-matter jurisdiction over the PHA’s condemnation proceeding. The city filed a similar plea on its own, too. The trial court denied both pleas. HOLDING: Dismissed for lack of jurisdiction. Hearing the case en banc, the court says it will first consider whether the city’s consent to condemnation is a jurisdictional prerequisite to the trial court’s exercise of jurisdiction. The answer to that question, the court says, determines whether this court has subject-matter jurisdiction over this interlocutory appeal. The court then examines Water Code ��62.106(a) and (d). Subsection (a) gives a navigation district such as the port authority general condemnation authority, while subsection (d) states that “no right-of-way may be condemned through any party of an incorporated city or town without the consent of the lawful authorities of that city or town.” The court notes that Seabrook argues that city consent is a jurisdictional prerequisite, while the PHA argues that it is not. Furthermore, PHA argues that �62.106(d) does not apply to PHA’s attempt to gain a fee simple title interest in the property. The court turns to Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000), for guidance. In Kazi and subsequent cases, the Texas Supreme Court has stated its view that a statutory requirement is jurisdictional, not substantive, only when the Legislature’s intent is indicated. The court thus looks at the statute’s language and purpose. While noting that �62.106(d) language amounts to using the phrase “may not,” the court finds nothing to suggest that the mandatory language of the statute is also a jurisdictional limitation. The court cites three reasons supporting its conclusion: 1. The Legislature expressed no consequence for failing to comply with this statutory provision; 2. Nothing in the statute’s history suggests a jurisdictional emphasis; and 3. Interpreting the statute as the city urges is unnecessary for protecting local government interests. “For these reasons, Water Code section 62.106(d)’s consent requirement, even assuming that it applies and controls in this case, is not jurisdictional and is not the proper subject of a jurisdictional plea.” The court notes that if the consent requirement were jurisdictional, then a stranger to a property title, i.e., the local government, can challenge the ownership of the condemned land even after the private landowner has been compensated with public funds and government improvements to the property have been completed. “Collateral attacks based upon subject-matter jurisdiction undermine this stability, creating potential defects in title stemming from a long-forgotten condemnation proceeding,” the court writes. The court concludes that because �62.106(d) is not jurisdictional, this court does not have jurisdiction over the interlocutory appeal. OPINION: Bland, J.; Taft, Keyes and Hanks, J.J. DISSENT: Keyes, J. “I would hold that the consent of an incorporated city or town to a taking by a navigation district within its boundaries is a condition precedent to the trial court’s exercise of jurisdiction over condemnation proceedings brought by the navigation district against a landowner and that proceedings brought without such consent must be dismissed for lack of subject-matter jurisdiction.”

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