Tx Dept of Transp. v. City of Sunset Valley

• Decision Date: 24 September 2004
• Docket Number: No. 03-0041.,03-0041.
• Citation: 146 S.W.3d 637
• Parties: TEXAS DEPARTMENT OF TRANSPORTATION, Michael W. Behrens, Robert L. Nichols, John W. Johnson, and Ric Williamson, Petitioners, v. CITY OF SUNSET VALLEY, Terrance R. Cowan, and Donald Hurwitz, Respondents.
• Court: Texas Supreme Court

146 S.W.3d 637

TEXAS DEPARTMENT OF TRANSPORTATION, Michael W. Behrens, Robert L. Nichols, John W. Johnson, and Ric Williamson, Petitioners, v. CITY OF SUNSET VALLEY, Terrance R. Cowan, and Donald Hurwitz, Respondents.

No. 03-0041.

Supreme Court of Texas.

Argued February 4, 2004.

Decided September 24, 2004.

Appeal from the District Court, Travis County, 353rd Judicial District, Peter M. Lowry, J Edward D. Burbach, Barry Ross McBee, Ronda Leigh Neff, Kristina Weber Silcocks, Rafael Edward Cruz, Rance L. Craft, Office of Attorney General, Philip A. Lionberger, Brown McCarroll, L.L.P., Jeffrey S. Boyd, Thompson & Knight, Greg Abbott, Attorney General of TX, Austin, Rick Thompson, Law Office of Deborah Hankinson PC, Dallas, John Stephen Toland, Watson Bishop London Galow, P.C., Austin, Idolina Garcia, Hermes Sargent Bates, LLP, Dallas, for Petitioners.

W. Thomas Buckle, Brad Rockwell and Jessica Scott, Douglas C. Young, Scanlan Buckle & Young, P.C., Sheri Joy Nasya Tolliver, Texas Civil Rights Project, Austin, for Respondent.

James C. Harrington, Austin, for Amicus Curiae Texas Civil Rights Project.

Justice O'NEILL delivered the opinion of the Court.

The Texas Department of Transportation (TxDOT) destroyed a portion of Jones Road in the City of Sunset Valley when it expanded State Highway 290. To regain the vital transportation link lost in the expansion, the City constructed a substitute street. We must decide whether the City can recover the cost of that construction from TxDOT under section 203.058(a) of the Texas Transportation Code, the common law of nuisance, or Article I, section 17 of the Texas Constitution. We hold that it cannot because (1) section 203.058(a) does not waive TxDOT's immunity from suit, nor is the City a state agency within the statute's purview; (2) absent an applicable waiver, TxDOT retained immunity from the City's common-law nuisance claim; and (3) TxDOT cannot be liable for an unconstitutional taking because the State owns the property that was appropriated for highway expansion. We also hold that the City's mayor and a council member lack standing to assert equal-protection claims on their own behalf or on behalf of the City's residents. Finally, we hold that the mayor's individual nuisance claim does not rise to the level of a constitutional taking and is thus barred by sovereign immunity. Accordingly, we reverse the court of appeals' judgment and render judgment for TxDOT.

I. Background

In 1991, TxDOT expanded State Highway 290 to create a controlled-access highway. The expansion extended to parts of the City of Sunset Valley, a general-law municipality approximately one square mile in size located in southwest Travis County. To complete the project, TxDOT closed Jones Road at its western intersection with Brodie Lane. Jones Road was a main thoroughfare that connected the City's center to the northern, western, and southwestern portions of the City. According to the City, the road's closure increased threefold the travel time across the City, significantly impacting the City's ability to combat crime and respond to police and other emergencies. To remedy the problem, the City constructed a substitute road at its own expense.

In May 1998, the City sued TxDOT to recover its costs in constructing the substitute road. The City asserted several liability theories, including a right of reimbursement under section 203.058(a) of the Texas Transportation Code, an unconstitutional taking under Article I, section 17 of the Texas Constitution, and common-law nuisance and trespass. TxDOT filed a plea to the jurisdiction asserting sovereign immunity and challenging the plaintiffs' standing, which the trial court denied. On interlocutory appeal, the court of appeals affirmed. 8 S.W.3d 727. On remand, the City's mayor, Terrance Cowan, and one of its council members, Donald Hurwitz, intervened in the suit on behalf of Sunset Valley's citizens claiming TxDOT had violated their equal-protection rights by failing to post adequate highway signs like those present in other similar municipalities and by installing high-mast floodlights not used on other controlled-access highways. Mayor Cowan also asserted individual nuisance claims for injuries that he alleged were particular to his property. The trial court held TxDOT liable to the City for the $836,192.80 cost of constructing reasonably necessary substitute facilities, and awarded the City approximately $857,000 in pre-judgment interest and attorneys' fees. The trial court also granted injunctive relief on the intervenors' equal-protection claims, abating the high-mast floodlights and ordering TxDOT to post adequate signs. It also awarded Cowan and Hurwitz $9,450 in attorneys' fees. Finally, the trial court awarded Cowan $3,648 in damages, as well as injunctive relief, based on his individual nuisance claim.

The court of appeals affirmed the trial court's judgment in part and reversed in part. 92 S.W.3d 540. It held that section 203.058(a) of the Texas Transportation Code supported the City's right to recover, but concluded that the statutory scheme required the Texas General Land Office to determine the amount of compensation that should be awarded and remanded the case accordingly. Id. at 547. Because it upheld the judgment based on the statutory claim, the court of appeals did not address the City's alternative constitutional or common-law claims. Id. In all other respects, the court of appeals affirmed the trial court's judgment. Id. We granted review to consider the plaintiffs' respective claims arising out of TxDOT's highway expansion and the closure of Jones Road.

II. Texas Transportation Code

State agencies like TxDOT are immune from liability in Texas unless the Legislature waives that immunity. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex.1997); Duhart v. State, 610 S.W.2d 740, 741 (Tex.1980). We have long recognized the Legislature's exclusive power to create a cause of action that waives the State's immunity. See Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). But sovereign immunity is waived only when the Legislature has clearly and unambiguously expressed that intent. See Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 3 (Tex.2000); see also TEX. GOV'T CODE § 311.034 (codifying common-law standard for immunity waiver: "[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language.").

The City claims that the Legislature waived TxDOT's sovereign immunity in section 203.058(a) of the Texas Transportation Code, which provides:

If the acquisition of real property, property rights, or material by the department from a state agency under this subchapter will deprive the agency of a thing of value to the agency in the exercise of its functions, adequate compensation for the real property, property rights, or material shall be made.

TEX. TRANSP. CODE § 203.058(a). The City contends this provision clearly and unambiguously provides a judicial right of recovery against TxDOT for property that it appropriated in closing Jones Road. The court of appeals agreed, holding that the City is a "state agency" entitled to compensation under the statute. 92 S.W.3d at 546-47.

TxDOT claims that in enacting section 203.058(a) the Legislature did not intend to create a statutory cause of action for which the State may be sued, but merely intended to establish a mechanism by which state agencies may be compensated if TxDOT uses their property in exercising powers conferred under chapter 203. TxDOT further argues that, even if section 203.058(a) does create a right of action, the City is not a "state agency" as defined in the statute. See TEX. TRANSP. CODE § 203.001(4) (defining "state agency" as "a department or agency of this state"). We agree with TxDOT on both points.¹

Our primary objective when construing a statute is to ascertain and give effect to the Legislature's intent. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003) (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). In discerning that intent, we begin with the "`plain and common meaning of the statute's words.'" Id. (quoting State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002) (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999))). We must read the statute as a whole and not just isolated portions. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003) (citing Gonzalez, 82 S.W.3d at 327). If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre, 109 S.W.3d at 745. We also consider the objective the law seeks to obtain and the consequences of a particular construction. TEX. GOV'T CODE § 311.023(1), (5); see also McIntyre, 109 S.W.3d at 745.

Nothing in the plain language of section 203.058 indicates the Legislature intended to waive immunity in situations like the one presented. The statute provides that when the State acquires property from a state agency pursuant to its chapter 203 powers, it must make "adequate compensation." TEX. TRANSP. CODE § 203.058(a). The statute then outlines the actual accounting procedures by which compensation is to be accomplished. See id. § 203.058(b)-(e). For example, subsection (b) states that compensation will be paid on vouchers, and subsection (c) indicates to which budget item compensation shall be credited. Subsection (d) concerns situations in which it is unclear which appropriation item or agency account is to be credited. Finally, subsection (e) provides that the General Land Office will determine appropriate compensation if the agency and TxDOT cannot agree on an amount. Nowhere does the statute expressly waive TxDOT's immunity. That the statute imposes a financial obligation on the State does not...