Transit v. Oncor Electric Delivery Co. Llc

• Citation: 331 S.W.3d 91
• Decision Date: 22 December 2010
• Docket Number: No. 05–09–01500–CV.,05–09–01500–CV.
• Parties: DALLAS AREA RAPID TRANSIT and Fort Worth Transportation Authority, Appellants,v.ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellee.
• Court: Court of Appeals of Texas

331 S.W.3d 91

DALLAS AREA RAPID TRANSIT and Fort Worth Transportation Authority, Appellants,

v.ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellee.

No. 05–09–01500–CV.

Court of Appeals of Texas, Dallas.

Dec. 22, 2010.

Patricia M. Reed, Assistant General Counsel/DART, Dallas, TX, for Appellants.R. Scott Moran, Joann N. Wilkins, Burford & Ryburn, LLP, Dallas, TX, for Appellee.Before Justices MORRIS, LANG, and MURPHY.

OPINION ON MOTION FOR REHEARING

Opinion By Justice LANG.

On July 29, 2010, this Court issued an opinion reversing the trial court's judgment in this case and rendering judgment dismissing this case with prejudice. Appellee Oncor Electric Delivery Company LLC (“Oncor”) filed a motion for rehearing on August 12, 2010. We deny Oncor's motion for rehearing. We withdraw our July 29, 2010 opinion and vacate the judgment of that date. This is now the opinion of the Court.

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 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 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, 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 Jones, 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. Jones, 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 (West Supp.2010) (“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 set out the following aids to help guide an analysis in determining whether the legislature has clearly and unambiguously waived immunity:

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, 106 S.W.3d at 697–98 (citations omitted).

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, 74 S.W.3d 849, 854 (Tex.2002); see Taylor, 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 (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, 273 S.W.3d 659, 661 (Tex.2008); DART v. Whitley, 104 S.W.3d 540, 542 (Tex.2003); DART v. Thomas, 168 S.W.3d 322, 325–27 (Tex.App.-Dallas 2005, pet. denied); Stephens v. DART, 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., 205 S.W.3d 706, 710 (Tex.App.-Fort Worth 2006, no pet.). Such entities enjoy governmental immunity. Taylor, 106 S.W.3d at 694 n. 3. Additionally, Oncor does not contest assertions by DART and The T that they are regional transportation...