Oncor Electric Delivery Co. v. Dallas Area Rapid Transit

369 S.W.3d 845, 2012 WL 2361726, 2012 Tex. LEXIS 508
CourtTexas Supreme Court
DecidedJune 22, 2012
DocketNo. 11-0079
StatusPublished
Cited by27 cases

This text of 369 S.W.3d 845 (Oncor Electric Delivery Co. v. Dallas Area Rapid Transit) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Oncor Electric Delivery Co. v. Dallas Area Rapid Transit, 369 S.W.3d 845, 2012 WL 2361726, 2012 Tex. LEXIS 508 (Tex. 2012).

Opinion

Justice HECHT delivered the opinion of the Court.

An electric utility sued two regional public transportation authorities, which are governmental entities, to condemn an easement across their land for use in constructing a transmission line approved by the Public Utility Commission (“PUC”). A divided court of appeals upheld the authorities’ assertion of governmental immunity and dismissed the case.1 While the utility’s petition for review was pending in this Court, the Legislature enacted House Bill 971, which extends an electric corporation’s power of eminent domain to include the acquisition of “all public land, except land owned by the state, on which the [PUC] has approved the construction of [a transmission] line.”2 The utility asks that we vacate the court of appeals’ judgment and remand the case to the trial court to consider the effect of the new statute. The authorities object that the statute is inapplicable. We agree with the utility.

I

Oncor Electric Delivery Company LLC owns and operates the largest electric distribution and transmission system in Texas, delivering power over some 117,000 miles of lines to about three million homes and businesses. Oncor applied to the PUC for approval to construct a new transmission line serving Dallas County.3 The PUC considered several different routes, weighing the costs to consumers and the impact on local communities and property owners. After lengthy proceedings, it approved one that crossed over a public commuter rail line between Dallas and Fort Worth that is jointly owned and operated by Dallas Area Rapid Transit (“DART”) and the Fort Worth Transportation Authority (collectively, “the Authorities”), both regional public transportation authorities under Texas law.4 All interest[848]*848ed parties were notified of Oncor’s application,5 and many landowners participated in the PUC proceedings. The Authorities did not.

Oncor attempted to negotiate with the Authorities for an aerial easement and right-of-way over approximately 0.37 acres of their rail line. Although Oncor and its predecessor had successfully negotiated similar rights-of-way with DART hundreds of times before, this time the parties could not reach an agreement,6 and Oncor sued to condemn the easement. Oncor invoked Section 181.004 of the Utilities Code, which states:

A gas or 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.7

The Authorities are governmental entities8 and pleaded immunity from suit. The trial court denied their plea and refused to dismiss the case, and the Authorities appealed.9 A divided court of appeals held that governmental entities are immune from suits for condemnation,10 that Section 181.004 does not waive governmental immunity,11 and that the PUC’s authority to approve transmission lines does not preempt immunity.12 Accordingly, the court dismissed the action.

Oncor petitioned this Court for review, and we requested briefing on the merits. But before Oncor filed its brief, the Legislature enacted House Bill 971, adding Section 37.053(d) of the Utilities Code, which provides in part:

For transmission facilities ordered or approved by the [PUC] ..., the rights extended to an electric corporation under Section 181.004 include all public land, except land owned by the state, on which the commission has approved the construction of the line.13

In its brief, Oncor argued that the court of appeals’ opinion and judgment should be vacated and the case remanded to the trial [849]*849court to consider the effect of the new statute. Oncor reserved its argument for reversal of the court of appeals’ opinion. The Authorities responded that Section 37.053(d) cannot affect this case for three reasons: (1) the statute does not clearly and unambiguously waive immunity any more than does Section 181.004; (2) the statute should be applied prospectively only; and (3) the Authorities, as political subdivisions of the State, have the same immunity as the State and therefore fall within the statutory exception for State-owned land. We granted Oncor’s petition.14 We address each of the Authorities’ arguments in turn. We assume, without deciding, that governmental entities are immune from condemnation suits.

II

We have long held,15 and the Legislature has more recently come to expressly require of itself,16 that a waiver of governmental immunity must be clear and unambiguous. Were we to apply that standard to Section 181.004, our analysis would proceed along these lines. Section 181.004 confers on gas and electric utilities a power of eminent domain over the “property of any person or corporation.” Since the adoption of the Code Construction Act in 1967, the Legislature has instructed that in construing its codes, the word “person” includes the “government or governmental subdivision or agency” “unless the statute or context ... requires a different definition”.17 But in 2001, the Legislature added that “the use of ‘person’ ... to include governmental entities[] does not indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no other reasonable construction.”18 These directives do not establish whether Section 181.004 waives immunity and shed no light at all on what the Legislature intended by its use of the word “person” in general statutes — not codes — enacted in 1911, when the predecessor to Section 181.004 was first enacted.19 The court of appeals was not persuaded by Oncor’s arguments that a utility’s power to condemn public lands was recognized in early case law.20 And while the Authorities are “corporate bod[ies]”,21 one may certainly question whether that statutory description of their capacity brings them within the entities whose property can be condemned by a gas or electric corporation. In short, whether Section 181.004 clearly and unarn-[850]*850biguously waives a government landowner’s immunity is a difficult question.22

And it is one we need not answer here because our focus instead is on Section 87.053(d). That statute provides that “the rights extended to an electric corporation under Section 181.004” — which by the latter’s terms are the rights “to enter on, condemn, and appropriate ... land, [a] right-of-way, [an] easement, or other property” — “include” certain “public land” in certain circumstances. Section 37.058(d) applies only to electric corporations, not gas corporations also covered by Section 181.004. The rights conferred do not extend to all public land but only to public land not owned by the State. And those rights exist only when construction of transmission facilities on the land is PUC-approved.

Had Section 37.053(d) gone on to state “immunity is waived”, its effect would be perfectly clear.

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Cite This Page — Counsel Stack

Bluebook (online)
369 S.W.3d 845, 2012 WL 2361726, 2012 Tex. LEXIS 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oncor-electric-delivery-co-v-dallas-area-rapid-transit-tex-2012.