Ex Parte Shepperd
513 S.W.2d 813, 1974 Tex. LEXIS 314, 17 Tex. Sup. Ct. J. 422 (1974)
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Rule of Law:
In an eminent domain proceeding, appraisal reports concerning comparable properties prepared by the condemning authority's testifying expert are discoverable, unless those reports pertain to tracts that are the subject of other pending litigation or pre-litigation negotiations.
Facts:
- In the first case, the State of Texas initiated eminent domain proceedings against Beever Farms, Inc. to acquire land for Interstate Highway 35.
- The State designated Curtis Bremer as its expert appraisal witness and possessed his appraisal reports on the Beever Farms property and five other nearby tracts for the same project.
- All five of the other tracts had been finally acquired by the State before discovery was sought.
- In the second case, the Urban Renewal Agency of San Antonio initiated eminent domain proceedings against Carlos Torralva to acquire his lot for the 'Vista Verde Project'.
- The Agency designated Frank Drane and Harvey Tamon as potential expert appraisal witnesses and possessed their reports on the Torralva property and nine other tracts in the project.
- At the time discovery was sought, at least two of the nine other tracts were still the subject of pre-condemnation negotiations and had not yet been acquired by the Agency.
Procedural Posture:
- In the first proceeding, Beever Farms, Inc. filed a motion for discovery in Frio County trial court seeking appraisal reports from the State's expert.
- The trial court ordered the State's attorney, Alfred L. Shepperd, to produce reports on the Beever Farms property and five others.
- Shepperd produced the report on Beever Farms' land but refused to produce the others, leading the trial court to hold him in contempt and order him to jail.
- In the second proceeding, Carlos Torralva filed a motion for discovery in Bexar County trial court seeking appraisal reports from the Agency's experts.
- The trial court ordered the Agency's attorney, Arthur C. Troilo, Jr., to produce reports on the Torralva property and nine others.
- Troilo agreed to produce the report on Torralva's land but refused to produce the others, leading the trial court to hold him in contempt and order him to jail.
- Both Shepperd and Troilo filed petitions for writs of habeas corpus directly with the Supreme Court of Texas to challenge their contempt orders.
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Issue:
In an eminent domain proceeding, may a landowner obtain pre-trial discovery of appraisal reports prepared by the condemning authority's testifying expert witness concerning other properties not owned by the landowner, when those reports are in the government's possession?
Opinions:
Majority - Greenhill, Chief Justice
Yes, with qualifications. Appraisal reports on comparable properties prepared by an opposing party's testifying expert are generally discoverable, but not if they concern land that is the subject of separate, pending condemnation proceedings or negotiations. The court reasoned that under Rule 167, the party seeking discovery must show 'good cause' and that the documents are 'material.' The reports are material for cross-examining and impeaching the appraiser's testimony by revealing possible inconsistencies in valuation, thus satisfying the good cause requirement. This case is distinguished from Russell v. Young, which shielded a non-party witness's private records from discovery, because these reports are not private and were prepared for a party to the suit, and the expert's credibility is a central issue. However, the court balanced this with the potential for prejudice to the condemning authority in other pending cases. Disclosing reports related to ongoing litigation or negotiations would undermine the policy of shielding an expert's consultative work, so an 'especially rigorous showing of good cause' would be needed, which was not met here. Therefore, reports on properties where acquisition is final are discoverable, while those related to pending matters are not.
Dissenting - Walker, Justice
No. The dissent argued that this issue should be controlled by the precedent set in Russell v. Young, which limited discovery sought for the primary purpose of impeaching a witness. Under that precedent, the appraisal reports on other properties would not be discoverable.
Analysis:
This decision carves out a specific discovery rule for eminent domain cases in Texas, balancing a landowner's right to test the credibility of the government's expert against the government's strategic interests in other ongoing property acquisitions. It moves away from the previous rule of per se immunity for such reports, establishing a new, qualified right of access based on the litigation status of the other properties. This precedent requires condemning authorities to be more transparent about valuations in completed acquisitions but protects their litigation and negotiation strategy for active cases, influencing how both sides approach discovery in condemnation proceedings.
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