IN THE SUPREME COURT OF TEXAS

════════════

No. 05-0236

════════════

The State of Texas, Petitioner,

v.

J. Grady Brown, Jr., Respondent

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of Texas

════════════════════════════════════════════════════

Justice O’Neill, concurring and dissenting.

I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).

As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008). As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.

___________________________________

Harriet O’Neill

Justice

OPINION DELIVERED: August 29, 2008