Opinion
No. 05-09-01500-CV
Opinion Filed July 29, 2010.
On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. CC-09-06498-D.
Before Justices MORRIS, LANG, and MURPHY.
OPINION
Oncor Electric Delivery Company LLC ("Oncor") filed an eminent domain proceeding 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 utility company that owns and operates the largest electric distribution and transmission system in Texas. After Oncor 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 in 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, 8 S.W.3d 636, 638 (Tex. 1999). We review de novo a challenge to a trial court's subject matter jurisdiction. Tex. Dep't. of Parks Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). To prevail on a plea to the jurisdiction, a party must show that even if all the allegations in the plaintiff's pleadings are taken as true, an incurable defect apparent on the face of the pleadings makes it impossible for the pleadings to confer jurisdiction on the trial court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.-Austin 2000, no pet.). Dismissal pursuant to a plea to the jurisdiction based on immunity is with prejudice. See Tex. A M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 846 (Tex. 2007); Harris Cnty. v. Sykes, 136 S.W.3d 635, 636 (Tex. 2004).
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, 251 S.W.3d 511, 513 (Tex. 2008) (citing Tex. Dep't of Transp., 8 S.W.3d at 638); MBP Corp. v. Bd. of Trustees of Galveston Wharves, 297 S.W.3d 483, 487 (Tex. App.-Houston [14th Dist.] 2009, no pet.). Immunity from liability protects the state from judgment even if the legislature has expressly consented to the suit. Tex. Dep't of Transp., 8 S.W.3d at 638. In contrast, immunity from suit bars an action against the state unless the state expressly waives immunity or consents to the suit. Id. The party bringing suit must establish the state's consent or waiver. Id. Absent such consent or waiver, a trial court lacks subject matter jurisdiction. Id. Any consent or waiver of immunity must be clear and unambiguous. Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 68 (Tex. 2009); Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003); see Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2009) ("In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.").
The Texas 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, 74 S.W.3d 849, 854 (Tex. 2002); see Wichita Falls State Hosp., 106 S.W.3d at 695. A lack of immunity may hamper governmental functions by requiring tax resources to be used for defending lawsuits and paying judgments rather than using those resources for their intended purposes. IT-Davy, 74 S.W.3d at 854. The supreme court has stated "it is the Legislature's sole province to waive or abrogate sovereign immunity." Id. at 857. In determining whether particular statutory language affirmatively and unambiguously waives immunity, the import of the statutory language must be ascertained in the context in which it occurs. Tooke, 197 S.W.3d at 328-29 ("sue and be sued" and "plead and be impleaded," mean different things in different statutes and thus do not reflect a clear legislative intent to waive immunity); see State v. Montgomery Cnty., 262 S.W.3d 439, 442-43 (Tex. App.-Beaumont 2008, no pet.) (the legislature "clearly and unambiguously" waived immunity in section 261.001 of the local government code, which states, "[t]he right of eminent domain conferred by this section extends to public or private land, but not to land used for cemetery purposes.").
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 (Vernon 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) (Vernon Supp. 2009). 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; (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, 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 Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 661 (Tex. 2008); Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Dallas Area Rapid Transit v. Thomas, 168 S.W.3d 322, 325-27 (Tex. App.-Dallas 2005, pet. denied); Stephens v. Dallas Area Rapid Transit, 50 S.W.3d 621, 632 (Tex. App.-Dallas 2001, pet. denied). The T has also been described as a "political subdivision." Bell v. VPSI, Inc. Fort Worth Transp. Auth., 205 S.W.3d 706, 710 (Tex. App.-Fort Worth 2006, no pet.). Such entities enjoy governmental immunity. Wichita Falls State Hosp., 106 S.W.3d at 694 n. 3. Additionally, Oncor does not contest assertions by DART and The T that they are regional transportation authorities created under Chapter 452 of the Texas Transportation Code. See Tex. Transp. Code Ann. §§ 452.001-.720 (Vernon 2007 Supp. 2009). Accordingly, they are immune from suit under Texas law. Amalgamated Transit Union Local No. 1338, 273 S.W.3d at 661; see Bell, 205 S.W.3d at 712.
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, 104 S.W.3d at 542; Dallas Area Rapid Transit v. Willis, 163 S.W.3d 814, 816 (Tex. App.-Dallas 2005, pet. denied); Dallas Area Rapid Transit v. Edwards, 171 S.W.3d 584, 587 (Tex. App.-Dallas 2005, pet. denied). However, these are distinct concepts. Wichita Falls State Hosp., 106 S.W.3d at 694 n. 3. "Sovereign immunity" refers to the state's immunity from suit and liability. Id. Its protection extends not only to the state, but also to the varying divisions of state government, including agencies, boards, hospitals, and universities. Id. "Governmental immunity" protects political subdivisions of the state, including counties, cities, and school districts. Id.; see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Although Oncor does not disagree with the general propositions of governmental immunity asserted by DART and The T, Oncor argues governmental immunity does not exist in this condemnation case because the suit is not one seeking money damages. See IT-Davy, 74 S.W.3d at 853. Also, Oncor reminds us that governmental immunity does not apply to some declaratory judgment proceedings that do not attempt to subject the government to monetary damages. See id. at 855; see also City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009). On that premise, Oncor asserts eminent domain is analogous to a declaratory judgment action because the condemnation suit does not seek to subject DART and The T to liability and, therefore, governmental immunity is not implicated.
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, 74 S.W.3d at 853. However, that case does not hold that only suits for money damages are barred. Rather, that court noted "declaratory-judgment suits against state officials, seeking to establish a contract's validity, to enforce performance under a contract, or to impose contractual liabilities are suits against the State" that implicate the "sovereign immunity" doctrine because such suits "attempt to control state action by imposing liability on the State." Id. at 855-56. Also, we have been shown no authority that identifies an eminent domain proceeding as being directly analogous to a declaratory judgment proceeding.
Next, Oncor argues 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., 258 S.W.3d 613, 617 (Tex. 2008); Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 882 (Tex. 1973); Sabine E. Tex. Ry. Co. v. Gulf Interstate Ry. Co., 92 Tex. 162, 166, 46 S.W. 784, 786 (1898). Citing Canyon Regional, Oncor argues that when there are two competing public uses, which Oncor suggests exist in this case, the proper standard is to determine whether the taking will practically destroy the public purpose of the property. However, once again, we cannot agree with Oncor. In the Canyon Regional, Austin Independent School District, and Sabine cases cited by Oncor, immunity was not raised by any party nor was it addressed by the courts writing the opinions. Accordingly, we cannot construe the Canyon Regional line of cases to provide the necessary precedential authority for Oncor to proceed with condemnation of the property of DART and The T.
Although their condemnation proceeding is not one that seeks damages from DART and The T, we cannot agree governmental immunity is inapplicable. Also, the case before us is not a declaratory judgment case that we must analyze to determine if it is of the kind that is barred by immunity. See IT-Davy, 74 S.W.3d at 855.
B. Legislative Waiver of Governmental Immunity Based on Granting Oncor Condemnation Rights
In its next argument, Oncor asserts the legislature waived the governmental immunity of DART and The T when it granted Oncor the power of eminent domain. See Tex. Util. Code Ann. § 181.004. Oncor relies on two cases, Humble Pipe Line and Enbridge, as authority that it has power to condemn property belonging to DART and The T, notwithstanding governmental immunity. Humble Pipe Line Co. v. State, 2 S.W.2d 1018 (Tex. Civ. App.-Austin 1928, writ ref'd); Fort Worth W. R.R. Co. v. Enbridge Gathering, 298 S.W.3d 392, 395 (Tex. App.-Fort Worth 2009, no pet.). In Humble Pipe Line, the court held that a pipeline company could condemn land belonging to any person or corporation, including property belonging to the state and governmental entities. Humble Pipe Line, 2 S.W.2d at 1019. In Enbridge, the Fort Worth Court of Appeals held that a gas corporation could condemn property belonging to a rail district because the rail district was a "person" under the Code Construction Act. Enbridge, 298 S.W.3d at 398.
DART and The T argue the two cases are inapplicable. First, they contend neither case addressed the issue of immunity. Second, they assert the holding in Humble Pipe Line is superseded by section 311.034 of the government code, which states, "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." See Tex. Gov't Code Ann. § 311.034. Third, DART and The T note that in Enbridge, the court expressly limited its holding to rail districts and did not address the issue of whether other governmental entities would be considered a "person." Enbridge, 298 S.W.3d at 398. Finally, although the language of section 181.004 provides condemnation power in general terms, that language does not clearly and unambiguously identify waiver of immunity.
We agree with DART and The T that their governmental immunity was not waived. While Oncor was given a specific statutory grant to condemn property owned by a "corporation" or "person," the legislature specifically stated that the use of the word "person" does not waive governmental immunity and there is no clear and unambiguous waiver of any governmental immunity. See Tex. Util. Code Ann. § 181.004; Tex. Gov't Code Ann. § 311.034; Cf. Montgomery Cnty., 262 S.W.3d at 442-43. We conclude that DART and The T's governmental immunity rights were not waived by the legislature's grant of eminent domain power to Oncor.
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 Oncor 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 by DART and The T, they 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) (Vernon Supp. 2009); In re Entergy Corp., 142 S.W.3d 316, 322-23 (Tex. 2004). That stated "purpose" of the PURA and the statutory sections that follow identify no power of the PUC to preempt any governmental immunity of DART and The T. Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005) (an administrative agency may exercise only those powers that the legislature confers upon it in clear and express language and has no inherent authority of its own); see also IT-Davy, 74 S.W.3d at 857 ("it is the Legislature's sole province to waive or abrogate sovereign immunity"). Nothing in the record shows the PUC attempted to exercise any power to declare the governmental immunity of DART and The T was waived. Additionally, no authority is cited to us demonstrating that DART and The T could have waived their governmental immunity by not participating in the PUC proceeding. See IT-Davy, 74 S.W.3d at 856-57 (there is no waiver by conduct exception to governmental immunity); see also Koseoglu, 233 S.W.3d at 840 (the Texas Supreme Court has consistently rejected a waiver by conduct argument). Oncor supports its assertion that DART and The T are collaterally attacking the PUC order by raising governmental immunity, by citing Allcomm Long Distance. Public Utility Commission of Texas v. Allcomm Long Distance, Inc., 902 S.W.2d 662, 666 (Tex. App.-Austin 1995, writ denied). Reliance on that case is misplaced. The Austin Court of Appeals held in that case that an agency's final order is immune from collateral attack, like the final judgment of a court. Id. However, in this case the final order of the PUC granted Oncor's application to construct a transmission line. In so doing, the PUC found in part in its order, "[Oncor] has not acquired any right-of-way for the Proposed Transmission Line." So, condemnation or any other methods of acquisition were not addressed by the PUC. That was left for later action by Oncor. We agree with DART and The T that by raising governmental immunity as a defense to the condemnation action they do not seek to re-route the line or interfere with the PUC order.
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, 161 S.W.3d 195 (Tex. App.-Austin 2005, no pet.); In re Entergy Corp., 142 S.W.3d at 316; Burlington N. Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In the City of Allen case, the City of Allen enacted ordinances requiring Oncor to put certain lines underground, to use steel or concrete poles instead of wood for overhead lines, and to screen surface facilities. Those ordinances were found by the Austin Court of Appeals to conflict with the PUC's comprehensive regulation scheme. City of Allen, 161 S.W.3d at 208-09. In re Entergy Corp. involved a dispute between two regulated electric utilities about an alleged breach of a merger agreement that was approved in a PUC proceeding. The Texas Supreme Court upheld dismissal of the district court lawsuit, concluding that disputes concerning a PUC-approved merger agreement are subject to initial review by the PUC. In re Entergy Corp., 142 S.W.3d at 323. In the Burlington case, the Fourteenth Court of Appeals concluded a railroad was empowered to condemn a city's property because of federal preemption. Burlington, 171 S.W.3d at 248-49. We cannot agree these cases demonstrate the assertion of governmental immunity interferes with the PUC's exclusive jurisdiction. As noted above, the PUC order authorizing Oncor's transmission line specifically recognized Oncor had not yet acquired any "right-of-way." On this record, we conclude Oncor's attempt to acquire part of its right-of-way in its condemnation action and the assertion of governmental immunity by DART and The T do not interfere with the jurisdiction of the PUC.
IV. 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., 136 S.W.3d at 636.