The City of Westworth Village, Texas filed a condemnation suit to acquire Jim Burgess's 3.548 acres to expand its municipal golf course.¹ Burgess says the City announced its intent to seize the property only a week after negotiations between a private company, UPL, and Burgess collapsed over price, that the City publicly touted the deal as promoting economic development and enhancing its revenue stream, and that the City planned to lease the land for 99 years to UPL to build and operate a for-profit golfing complex similar to TopGolf, including a short-game practice area.² The City says the project is the unification and expansion of a publicly owned, publicly accessible golf course, a park use, and that engaging a private operator under a lease does not change its public purpose.³

On March 10, 2023, the County Court at Law No. 2 of Tarrant County (Judge Jennifer Rymell) granted the City partial summary judgment that it has eminent domain power and condemned the property for an authorized public use and necessity, and on May 13, 2024 it signed a final judgment vesting title in the City and awarding Burgess $1,313,675 in compensation and $4,918.10 in costs. Both sides appealed.¹ The Second Court of Appeals (Wallach, J., joined by Kerr and Walker, JJ.) reversed and remanded, holding that the 2009 constitutional amendment eliminated judicial deference to a governmental declaration of public use, that the City's taking was for a park, and that whether the City's primary purpose was economic development or tax revenue is a fact question for a jury. Burgess v. City of Westworth Village, No. 02-24-00252-CV, 2025 WL 1717142 (Tex. App.⁠—Fort Worth June 19, 2025, pet. filed) (mem. op.).² The City petitioned for review on October 13, 2025 and Burgess cross-petitioned on November 5, 2025. The Court requested merits briefing; both sides filed opening briefs on July 20, 2026, responses on August 10, 2026 and replies on August 31, 2026 (Docket).

Petition for review and cross-petition for review from the Second Court of Appeals, which reversed a judgment in a municipal condemnation case and remanded. The Court requested and received merits briefing, including replies, granted both petitions on October 2, 2026 and set oral argument for January 11, 2027.

The City presents three questions:

1. whether the court of appeals erred by injecting Government Code section 2206.001's limits into its constitutional analysis to hold that the 2009 amendment eliminated legislative deference, even though the limits do not apply to takings for a park
2. whether it erred in holding that whether the City's primary purpose was economic development or tax revenue is a fact question for the jury, when what is a public use is a question of law
3. whether it erred in finding a possible primary purpose of economic development based solely on a lease governing how part of the course would be operated¹

Burgess's cross-issue is whether the court of appeals erred in holding that a taking to enable a private company to build and operate a for-profit short-game practice area is a taking for a public park under the statutory exemption.²

Petitioner (City of Westworth Village): KMS Retail forecloses the court of appeals' reading: the 2009 amendment did not alter or eliminate the legislative deference rule, its text and history confirm the Legislature rejected the rationale for eliminating deference, and no court has applied section 2206.001 to the amendment to abrogate deference. What constitutes a public use, and the City's "primary purpose" in making a public-use determination, are questions of law for the court, not fact questions for a jury, and allowing the new rule to stand would undermine the framework that makes public projects possible. The court's holding that the taking is for a park is dispositive: a taking for a publicly owned park is a constitutionally authorized public use, and ancillary economic benefits do not negate that. The City asks the Court to reverse, reinstate the trial court's judgment on the right to take, and remand.¹

Cross-Petitioner (Jim Burgess): The taking violates section 2206.001 of the Government Code, which prohibits a taking, even for public use, that confers a benefit on a private party or promotes economic development. The taking confers a private benefit on UPL, and the court of appeals incorrectly applied the exemption for public buildings, hospitals, and parks: the short-game practice facility is not a park, and neither is the golf course. Texas statutes differentiate parks from golf courses and from recreational facilities, the older decisions describing parks favor Burgess because they treat parks as open natural spaces accommodating a wide variety of activities, Tort Claims Act decisions do not inform an eminent-domain statute, and the exemption should have been construed in the owner's favor rather than the City's.²

The City argues the petition presents recurring issues of importance to the state's eminent-domain jurisprudence, because the court of appeals' misidentification of an issue of first impression produced two new standards of review for eminent-domain cases, the abandonment of legislative deference and the introduction of fact questions into public-use determinations.¹ Burgess argues the case involves a question of law important to Texas jurisprudence concerning a city's use of eminent domain to benefit a private company under the post-Kelo statute.²

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