Lead Opinion
OPINION ON MOTION FOR REHEARING
Opinion By
On July 29, 2010, this Court issued an opinion reversing the trial court’s judg
This case involves an eminent domain proceeding filed by Oncor against appellants, Dallas Area Rapid Transit (“DART”) and Fort Worth Transportation Authority (“The T”), to take an easement for an electrical transmission line. Appellants filed a plea to the jurisdiction based on governmental immunity, which, after a hearing, the trial court denied. We reverse the trial court’s order denying the plea and render judgment dismissing the action.
I. BACKGROUND
DART and The T do business as the Trinity Railway Express, a public transportation commuter rail service running between Dallas and Fort Worth. Oncor is an electric corporation that owns and operates the largest electric distribution and transmission system in Texas. After On-cor filed an application with the Public Utility Commission (“PUC”), the PUC approved construction of a transmission line that would cross over a rail line owned by DART and The T. Notice of the PUC proceeding was sent to the Trinity Railway Express, but neither DART nor The T appeared. Oncor approached DART and The T to negotiate an aerial easement across the rail line, but they were unable to reach an agreement. Then, Oncor filed an eminent domain proceeding against DART and The T to acquire the necessary easement. DART and The T responded by filing a special appearance that included a plea to the jurisdiction asserting their respective governmental immunities. The parties agree, and the trial court took judicial notice, that DART and The T are “governmental entities.” After submission to the trial court, the plea to the jurisdiction was denied. In one issue on appeal, DART and The T claim the trial court erred by denying their plea to the jurisdiction, and they request the trial court’s order be reversed and the suit be dismissed with prejudice.
II. APPLICABLE LAW
A. Plea to the Jurisdiction
A party may contest a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones,
B. Governmental Immunity and Its Waiver
A unit of state government is immune from suit and liability absent a waiver of immunity or legislative consent to sue. Univ. of Tex. -Pan Am. v. Aguilar,
First, a statute that waives the State’s immunity must do so beyond doubt, even though we do not insist that the statute be a model of perfect clarity.... For example, we have found waiver when the provision in question would be meaningless unless immunity were waived....
Second, when construing a statute that purportedly waives sovereign immunity, we generally resolve ambiguities by retaining immunity....
Third, if .the Legislature requires that the State be joined in a lawsuit for which immunity would otherwise attach, the Legislature has intentionally waived the State’s sovereign immunity....
Finally, we are cognizant that, when waiving immunity by explicit language, the legislature often enacts simultaneous measures to insulate public resources from the reach of judgment creditors .... Therefore, when deciding whether the Legislature intended to waive sovereign immunity and permit monetary damages against the State, one factor to consider is whether the statute also provides an objective limitation on the State’s potential liability.
Taylor,
The supreme court has consistently deferred to the legislature to waive immunity from suit because the legislature is better suited to address the conflicting policy issues involved. Tex. Natural Res. Conservation Comm’n v. IT-Davy,
C. Right of Eminent Domain
Section 181.004 of the Texas Utilities Code provides that an electric corporation has the right and power to “enter on, condemn, and appropriate the land, right-of-way, easement, or other property of any person or corporation.” Tex. Util.Code Ann. § 181.004 (West 2007). The Code Construction Act of the Texas Government Code defines “person” to include a “governmental subdivision or agency.” Tex. Gov’t Code Ann. § 311.005(2) (West 2005). Section 311.034 states that, “[i]n a statute, the use of ‘person,’ as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction.” Id. § 311.034.
III. ANALYSIS
DART and The T argue that, as “governmental entities,” they enjoy governmental immunity from Oncor’s suit absent legislative consent. In response, Oncor contends that (1) governmental immunity does not apply to eminent domain proceedings; (2) the legislature waived DART and The T’s governmental immunity by granting Oncor the power of eminent domain to acquire public property; (3) governmental immunity is preempted by the PUC’s statutory powers to regulate Oncor; and (4) DART and The T waived governmental immunity by not challenging the routing of Oncor’s electrical transmission line.
A. Applicability of Governmental Immunity to Condemnation Proceedings
The record reflects that the parties agree, and the trial court took notice, that DART and The T are “governmental entities.” In recent case law, DART has also been described variously as a “governmental unit,” a “governmental entity,” an “authority,” and a “political subdivision.” See, e.g., DART v. Amalgamated Transit Union Local No. 1338,
We cannot agree with Oncor’s contention that governmental immunity is not implicated in this condemnation case. Indeed, IT-Davy does state, “Sovereign immunity protects the State from lawsuits for money damages.” IT-Davy,
In a September 10, 2010 amicus curiae brief submitted in support of Oncor’s motion for rehearing, Centerpoint Energy Houston Electric, LLC asserts an additional argument not raised by Oncor regarding inapplicability of governmental immunity. Our dissenting colleague relies, in part, upon arguments made by Center-point. Specifically, Centerpoint contends “ ‘in rem’ condemnation suits do not implicate governmental immunity concerns.” According to Centerpoint, “a condemnation suit is not a suit for monetary damages or even one of in personam liability.” Rather, Centerpoint asserts, “[a] condemnation proceeding is an in rem matter and is not a taking of rights of persons in an ordinary sense but is an appropriation of physical properties.” Centerpoint contends Oncor named DART and The T as parties only because “the [Texas Property Code] required the joinder of each of them as an ‘owner’ of the subject property.” Therefore, Centerpoint argues, the “policies behind sovereign immunity are irrelevant in this case.” Centerpoint cites no authority directly on point in support of its position.
“A motion for rehearing does not afford a party an opportunity to raise new issues after the case has been briefed, argued, and decided on other grounds, unless the error is fundamental.” OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P.,
It is clear that a suit against the state for condemnation of an easement is a suit to divest the state of property with compensation to be declared by a court. See Tex. Prop.Code Ann. §§ 21.001-.065 (West 2000, 2004, & Supp.2010). Recovery of costs against the government is available in certain condemnation cases. See id. §§ 21.042-.047. We cannot see that condemnation actions are free from the doctrine of governmental immunity, while other similar actions against the state are barred by immunity. It is significant to us that the state is immune from a suit to declare the rights to title and possession of real property, even where such suit does not involve money damages. See Porretto v. Patterson,
Finally, Oncor contends the doctrine of governmental immunity does not apply to condemnation because the “paramount importance rule” may be applied in order to determine the rights to public property being condemned for a public purpose. See Canyon Reg’l Water Auth. v. Guadalupe-Blanco River Auth.,
B. Legislative Waiver of Governmental Immunity Based on Granting Oncor Condemnation Rights
In its next argument, Oncor contends (1) “the precodified eminent domain law gave Oncor the power to condemn public land”; (2) “[t]he power to condemn public land necessarily waives governmental immunity”; (3) “[a]fter the [case law] had interpreted the power to condemn the property of ‘any person or corporation’ as including the power to condemn public land,” the legislature “reenacted, for electric companies such as Oncor, the same statutory language,” thus adopting that construction into the precodified statute; and (4) “codification of the eminent domain law into the Utilities Code was intended to be nonsubstantive” and “to not change the precodified law.” Further, Oncor asserts section 311.034 does not prevent the waiver of governmental immunity in this case because (1) section 311.034 was meant to address codified statutes where the broad definition of “person” was being used to change the pre-existing law, which is not the situation here, and (2) the context of section 181.004 “indicates no other reasonable construction than that governmental immunity is waived.”
DART and The T assert generally that their immunity is not waived by Oncor’s eminent domain power. They contend the cases cited by Oncor are inapplicable and/or superseded by section 311.034. Further, DART and The T argue that although the language of section 181.004 provides condemnation power in general terms, that language does not clearly and unambiguously identify waiver of immunity-
In support of its contention that “the precodified eminent domain law gave On-cor the power to condemn public land,” Oncor cites Humble Pipe Line Co. v. State,
We cannot agree with Oncor that Humble Pipe Line supports its assertion that “[t]he precodified law was that Oncor had the right to condemn public land.” Of course, we see Oncor’s argument here to be that no waiver of governmental immunity need be expressly stated in the statute if the statute otherwise establishes the power to condemn public property. However, neither Humble Pipe Line nor the arguments based upon it address the longstanding mandate from the Texas Legislature and the Texas Supreme Court that a waiver of governmental immunity in a statute must be clearly and unambiguously stated. See Tex. Gov’t Code Ann. § 311.034; Taylor,
Further, Humble Pipe Line involved common carrier statutes that are now codified in the Texas Natural Resources Code. See Tex. Nat. Res.Code Ann. §§ 111.019-.022 (West 2001). The predecessor to section 181.004, the utility statute at issue here, was article 1436 of the 1925 Revised Statutes.
Additionally, Oncor asserts Fort Worth & Western Railroad Co. v. Enbridge Gathering,
Although Oncor cites Enbridge for the proposition that under the utilities code, “an electric corporation can condemn public property,” Oncor specifically asserts in its brief on appeal that it “is not relying on the definition of ‘person’ in section 311.005 as the basis of a waiver of governmental immunity.” As noted above, the Second Court of Appeals in Fort Worth determined the rail district constituted a “person” under section 311.005 of the Code Construction Act, but that court did not address section 311.034 and the relationship of “person” and waiver of governmental immunity. Additionally, Oncor asserts the court in Enbridge “found by necessary implication, the grant of a power necessary and proper to the execution of the power expressly granted” in construing the utilities code to include placement of gas pipelines “under” railroad tracks. However, Oncor does not explain or discuss how such implication, effected by the Second Court of Appeals adding the word “under” not found in section 181.005, provides any basis for its contention that Enbridge “hold[s] that the statutory power to condemn the property of any person or corporation includes the power to condemn property belonging to the state and governmental entities, ie., public property.” (emphasis original). We cannot agree En-bridge supports Oncor’s contention.
Next, we address together Oncor’s arguments that (1) “[ajfter the [case law] had interpreted the power to condemn the property of ‘any person or corporation’ as including the power to condemn public land,” the legislature “reenacted, for electric companies such as Oncor, the same statutory language,” thus adopting that construction into the precodified statute, and (2) “codification of the eminent domain law into the Utilities Code was intended to be nonsubstantive” and “to not change the precodified law.” In support of those contentions, Oncor argues that “[a]fter the Humble Pipe Line case had interpreted the power to condemn the property of ‘any person or corporation’ as including the power to condemn public land,” the legislature “reenacted, for electric companies such as Oncor, the same statutory language giving them the power to condemn the property of any 'person or corpora
In a similar vein, Oncor contends that because “[t]he legislative act that created the Texas Utilities Code specifically provided that codification was not intended to change existing substantive law,” corporations such as Oncor “continue” to be “empowered to condemn public property.” However, that argument, like the other made above, is dependent upon Oncor’s assertion that Humble Pipe Line granted Oncor “the right to condemn public lands.” As described above, we cannot agree with that assertion. Therefore, we cannot agree with Oncor on its contention that codification of “existing substantive law” allowed Oncor to condemn public property.
Now, we address Oncor’s assertion that section 311.034 does not prevent the waiver of governmental immunity in this case. Oncor asserts two arguments. First, On-cor contends section 311.034 was intended “to prevent the Code Construction Act definition of ‘person’ from being used to find a waiver of governmental immunity when no such waiver existed in the precodified statute.” In this case, Oncor argues, a waiver of governmental immunity did exist in the precodified statute because (1) the court in Humble Pipe Line held “the statutes, including articles 1435 and 1436, granted the right to condemn public lands” and (2) a legislative grant of the power to condemn public land necessarily waives governmental immunity. However, as described above, Oncor cites no cases that support its proposition that the precodified law gave electric corporations the right to condemn public land, and we have found none. Importantly, no clear and unambiguous waiver of governmental immunity has been declared to be present in the relevant statutes applicable to electric corporations. See Taylor,
Oncor asserts “[t]he second reason that section 311.034 does not prevent a waiver in this case is found in the last phrase of that section: ‘unless the context of the statute indicates no other reasonable construction.’” See Tex. Gov’t Code Ann. § 311.034. According to Oncor,
[Section 181.004] provides that an electric corporation may condemn the property of “any person or corporation.” This is the same language the legislature has used since 1911 and which has been held to include the power to condemn public land. The eminent domain provision and the remainder of Chapter 181 of the Utilities Code, including the definition of “person” incorporated from the Government Code, indicate no reasonable construction other than a waiver of governmental immunity.
Finally, we address Oncor’s argument that “[a] proper analysis of the Taylor factors indicates that the legislature did clearly and unambiguously waive governmental immunity in Section 181.004.” See Taylor,
As acknowledged by Oncor, the factors set out by the supreme court in Taylor are not conclusive, but rather are “aids to help guide our analysis” in determining whether the legislature has “clearly and unambiguously” waived immunity. Id. at 697. The first step in the Taylor analysis is to consider whether the statute waives immunity “beyond doubt.” Id. One example of such waiver is where “the provision in question would be meaningless unless immunity were waived.” Id. Conversely, the fact that an act remains viable despite the retention of immunity is one indication the legislature did not intend to waive immunity. Id. at 700. Oncor argues that by “reenacting the language” of section 181.004 after Humble Pipe Line construed “identical” language to include the power to condemn public land, “the legislature has clearly and unambiguously indicated that Section 181.004 includes the power to condemn public land.” Oncor contends “[t]his legislative grant is made meaningless if governmental entities such as Appellants can refuse to agree on damages and then claim governmental immunity to avoid a condemnation proceeding.” However, as described above, we cannot agree with Oncor’s assertion that the court in Humble Pipe Line held “the statutes, including articles 1435 and 1436, granted the right to condemn public lands.” The dissent, like Oncor, looks only at whether governmental immunity would render section 181.004 “meaningless” in light of On-cor’s alleged power to condemn public land. We do not believe this is the proper analysis. See id. Taylor cites only one example where the court found a provision would be meaningless unless immunity were waived. Id. In that case, Kerrville State Hosp. v. Fernandez,
Our second step is to consider whether the text and history of the statute leave room for doubt as to whether the legislature intended waiver. Taylor,
The third step is to consider whether the legislature requires that the state be joined in a lawsuit for which immunity would otherwise attach. Id. at 697-98. Oncor argues chapter 21 of the Texas Property Code “requires that property owners be made parties to condemnation proceedings, and it makes no exception for landowners who happen to be governmental entities.” According to Oncor, “[t]he provisions of the Property Code would be nullified if every governmental entity could defeat Oncor’s power to condemn public property through governmental immunity.” In support of its argument, Oncor cites Texas Education Agency v. Leeper,
The fourth and last step is to consider whether section 181.004 objectively limits the liability of DART and The T. Taylor,
C. Waiver of Governmental Immunity and Preemption of Governmental Immunity Based on Oncor’s Public Utility Commission Proceedings
Next, we address Oncor’s three arguments claiming the governmental immunity of DART and The T was waived or preempted by the PUC’s statutory power exercised in the regulatory proceeding as to the location of Oncor’s transmission line. First, Oncor contends the governmental immunity of DART and The T is preempted by the statutory powers of the PUC to comprehensively regulate Oncor. Second, Oncor contends DART and The T waived governmental immunity by not challenging the routing of Oncor’s electrical transmission line before the PUC. Last, Oncor argues DART and The T’s assertion of immunity is a collateral attack on the PUC’s order and is in irreconcilable conflict with the PUC’s order.
In response, DART and The T argue that the PUC’s regulatory power over On-cor does not preempt claims of governmental immunity, and in the regulatory proceeding the PUC did not purport to determine there was a waiver of immunity. Also, DART and The T argue their failure to participate in the PUC proceedings, aside from any issues about whether they received proper notice, did not amount to a waiver of immunity. Finally, DART and The T assert Oncor’s collateral attack argument is “inaccurate” because by the assertion of immunity, DART and The T do not seek to re-route Oncor’s transmission line nor prohibit Oncor from building the line in accordance with the PUC Order.
We cannot agree with Oncor on these arguments. The source of the PUC’s power is clearly stated in the Public Utility Regulatory Act (“PURA”), which states in part, “The purpose of this subtitle is to establish a comprehensive and adequate regulatory system for electric utilities to assure rates, operations and services that are just and reasonable to the consumers and to the electric utilities.” Tex. Util.Code Ann. § 31.001(a) (West 2007); see In re Entergy Corp.,
Oncor supports its assertion that DART and The T are collaterally attacking the PUC order by raising governmental immunity by citing Public Utility Commission of Texas v. Allcomm Long Distance, Inc.,
Finally, we address the position of Oncor that the assertion of governmental immunity by DART and The T is in conflict with the PUC’s exclusive jurisdiction to regulate Oncor’s rates and services. Oncor cites three cases to support this contention. City of Allen v. Pub. Util. Comm’n,
IY. CONCLUSION
Premised on the foregoing, we reverse the trial court’s denial of DART and The T’s plea to the jurisdiction. Because we have found that this suit is barred by governmental immunity, we render judgment dismissing Oncor’s suit with prejudice. See Harris Cnty.,
MURPHY, J., dissenting.
Notes
. In this case, DART and The T claim they are protected by "governmental immunity." Case law analyzing whether DART enjoys immunity uses interchangeably the terms “sovereign immunity” and "governmental immunity.” Whitley,
. See Act of Mar. 25, 1911, 32nd Leg., R.S., ch. 111, § 4, 1911 Tex. Gen. Laws 228, 229, repealed by Act of May 8, 1997, 75th Leg., R.S., ch. 166, § 1, 1997 Tex. Gen. Laws 713, 983 (current version at Tex. UtilCode Ann. § 181.004). Article 1436 provided in part that "a corporation for the purpose of generating, manufacturing, transporting and selling gas, electrical current and power” in Texas "shall have the right and power to enter upon, condemn and appropriate the lands, right of way, easements and property of any person or corporation, and shall have the right to erect its lines over and across any public road, railroad, railroad right of way, interurban railroad, street railroad, canal or stream in this State, any street or alley of any incorporated city or town in this State with the consent and under the direction of the governing body of such city or town.” Id.
. Section 181.004 applies to "[a] gas or electric corporation.” See Tex. Util.Code Ann. § 181.004.
. See Tex Rev.Civ. Stat. Ann. art. 6550c, § 5(a); id. § 1(5) (West Supp.2010).
. The applicable version of section 181.005 provided, "A gas corporation has the right to lay and maintain lines over and across a public road, a railroad, railroad right-of-way, an interurban railroad, a street railroad, a canal or stream, or a municipal street or alley.” See Enbridge,
Dissenting Opinion
Dissenting Opinion By
Oncor argues that the doctrine of governmental immunity does not apply to eminent domain proceedings because the
Governmental Immunity
In Oncor’s live pleading, it seeks aerial easement rights from DART and The T pursuant to chapter 21 of the Texas Property Code and section 181.004 of the Texas Utility Code. In its prayer for relief, Oncor seeks appointment of special commissioners to hear its condemnation petition and asks that upon payment into the registry of the amount awarded the landowners (DART and The T), it receive a writ of possession necessary to enforce the decision of the special commissioners. Oncor requests costs of suit and “such other and further orders, writs and relief, both general and special, legal and equitable, to which it is entitled.”
Governmental immunity from suit does not protect against all legal proceedings. The Supreme Court of Texas has characterized the doctrine of governmental immunity as protecting the State from lawsuits for money damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy,
Oncor’s suit, in pleading and substance, seeks relief against DART and The T to determine the parties’ rights in the property for which Oncor seeks an aerial easement. As such, it is a quasi in rem action. See Bodine v. Webb,
Waiver
If governmental immunity were implicated in this action, I would conclude such immunity has been waived. Gas and electric corporations have long had the right to condemn public land for purposes of sup
Section 181.004 of the codified utilities law expressly allows Oncor the right to condemn property of any person or corporation. Tex. Util.Code Ann. § 181.004 (West 2007). The Code Construction Act governs interpretation of the Texas Utilities Code, and we are to apply the code definitions when interpreting statutes “unless the statute or context in which the word or phrase is used requires a different definition.” Tex. Gov’t Code Ann. § 311.005 (West 2005). “Person” includes a “government or governmental subdivision or agency-” Id. § 311.005(2); see also Fort Worth & W. R.R. v. Enbridge Gathering (NE Tex. Liquids), L.P.,
Pursuant to section 311.034 of the Code Construction Act, we are informed that use of the term “person” in a statute is not a waiver of immunity. Tex. Gov’t Code Ann. § 311.034 (West Supp.2010). That same section emphasizes that this non-waiver provision is to help preserve the legislature’s interest in managing state fiscal matters. Id. These provisions are consistent with our supreme court decisions emphasizing that suits seeking to impose liability on a governmental unit are suits against the State, and are thus barred, and that waiver of governmental immunity requires clear and unambiguous language. See, e.g., IT-Davy,
When, as here, the legislature has not provided “magic words” to waive immunity, the supreme court has identified four factors to use as aids to help guide our analysis in determining whether the legislature has clearly and unambiguously
As to the first factor, Oncor’s power to condemn public land pursuant to section 181.004, as interpreted since at least 1928, would be rendered meaningless if governmental entities can refuse to participate and avoid a condemnation proceeding based on immunity. See, e.g., State v. Montgomery Cnty.,
For these reasons, I would conclude the trial court’s order denying DART and The T’s plea to the jurisdiction should be affirmed and therefore dissent.