401 S.W.3d 826
Tex. App.2013Background
- AT&T sues to determine who must pay relocation costs for AT&T facilities on Forest Hill Street Bridge as part of Brays Bayou project.
- Flood Control District (HCFCD) plans to widen Brays Bayou; City of Houston participates via interlocal agreement and relocation directives.
- Interlocal Agreement Section 8 designates the District as project manager and directs relocation at no cost to City/District upon written request.
- City ordinances (Article XVIII, Sections 40-393, 40-397) authorize the City to relocate private facilities at owner’s expense and recover costs if delays occur.
- AT&T amended its petition to seek declaratory and injunctive relief against County Commissioners, Marcotte, and City after initially naming only the District and City.
- Trial court granted various motions; this appeal challenges subject-matter jurisdiction and summary judgments against AT&T.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ultra vires jurisdiction applies against the County. | AT&T relies on Heinrich that officers submitting to statutory directives can be sued. | Commissioners lacked action without authority; no ministerial act alleged. | Yes; ultra vires jurisdiction exists against the County. |
| Whether §49.223 requires a district to pay relocation costs when it makes relocation necessary. | §49.223 applies whenever District makes relocation necessary in its powers. | Not clearly within §49.223; City’s involvement and district’s role undermine applicability. | Not applicable; costs not clearly within §49.223. Summary judgment for defendants proper. |
| Whether City involvement affects application of §49.223. | District's actions led City to direct relocation; this triggers §49.223. | City’s directive and control show City—not District—made relocation necessary. | City involvement prevents §49.223 from applying as governing the relocation costs. |
| Whether Marcotte is properly subject to suit given §49.223 interpretation and district-city roles. | Marcotte liable as individual officer under ultra vires theory. | No ultra vires act by Marcotte; merits hinge on §49.223 interpretation. | Marcotte properly granted summary judgment; no individual ultra vires liability established. |
Key Cases Cited
- Tex. Water Code v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (ultra vires exception permits suits against officials to compel compliance with statutory provisions)
- Southwestern Bell Tel., L.P. v. Harris County Toll Rd. Auth., 282 S.W.3d 59 (Tex. 2009) (strict construction when liability is unknown at common law; not clearly within statute's purview)
- Harris Cnty. v. Sykes, 136 S.W.3d 635 (Tex. 2004) (plea to jurisdiction governs sovereign-immunity-related dismissals)
- Air Liquide Am. Corp. v. U.S. Army Corps. of Eng’rs, 359 F.3d 358 (5th Cir. 2004) (far-reaching district actions not necessarily making relocation costs fall under statute)