By:  Madla                                            S.C.R. No. 71

         97S1183/1                           

                            SENATE CONCURRENT RESOLUTION

 1-1           WHEREAS, Mr. Orian R. Gardner alleges that:

 1-2                 (1)  he is the owner of Lots 3 and 4, Block 100 and

 1-3     Lots 11 and 12, Block 106, Millington Addition, Presidio, Texas;

 1-4                 (2)  on or about November 10, 1949, the property was

 1-5     purchased in error, without his knowledge, by the Texas Department

 1-6     of Transportation from a person with no power or right to convey

 1-7     such property and has since been used for the construction of F.M.

 1-8     170;

 1-9                 (3)  the property was acquired by the Texas Department

1-10     of Transportation while he was living in California and he was not

1-11     made aware of the acquisition until his return to Texas in 1990;

1-12                 (4)  he has continuously paid taxes on the property

1-13     from the time it was deeded to him to the present; and

1-14                 (5)  the Texas Department of Transportation initially

1-15     acknowledged his ownership of the property but since has claimed

1-16     that the statute of limitations has run and has refused to offer

1-17     him the compensation rightfully owed to him for the use of his

1-18     property; now, therefore, be it

1-19           RESOLVED by the Legislature of the State of Texas, That Mr.

1-20     Orian R. Gardner is granted permission to sue the State of Texas

1-21     and the Texas Department of Transportation subject to Chapter 107,

1-22     Civil Practice and Remedies Code; and, be it further

1-23           RESOLVED, That payment of any damages awarded in a suit

 2-1     authorized by this resolution from the state treasury is subject to

 2-2     appropriation; and, be it further

 2-3           RESOLVED, That it is the intent of the 75th Legislature of

 2-4     the State of Texas that, if any damages are awarded in a suit

 2-5     authorized by this resolution, the damages shall be paid from money

 2-6     appropriated to or otherwise available to the Texas Department of

 2-7     Transportation and that additional money should not be appropriated

 2-8     for the purpose of paying such damages; and, be it further

 2-9           RESOLVED, That Mr. Orian R. Gardner and the Texas Department

2-10     of Transportation may agree to submit the matter that is the

2-11     subject of this resolution to binding arbitration; and, be it

2-12     further

2-13           RESOLVED, That the provisions of this resolution are not

2-14     severable, and if any provision of this resolution is finally held

2-15     to be invalid by a court of competent jurisdiction, the remaining

2-16     provisions are also invalid and this resolution has no force or

2-17     effect and no suit is authorized by this resolution; and, be it

2-18     further

2-19           RESOLVED, That the executive director of the Texas Department

2-20     of Transportation be served process as provided by Subdivision (3),

2-21     Subsection (a), Section 107.002, Civil Practice and Remedies Code.