IN THE SUPREME COURT OF
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No. 06-0933
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Southwestern Bell Telephone, L.P, d/b/a SBC Texas, Petitioner,
v.
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On Petition for Review from the
Court of Appeals for the First District of
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Argued January 15, 2008
Chief Justice Jefferson delivered the opinion of the Court.
A telephone company that was forced to relocate its facilities due to road construction demanded reimbursement from the county and its toll road authority. Neither our statutes nor our constitution, however, authorize the relief sought. Because the utility has no vested property right to relocation of its facilities at county expense, and because the Legislature has not waived the governmental entities’ immunity from suit, we affirm the court of appeals’ judgment.
I
Background
Southwestern Bell (“SBC”) provides
local telephone service in
When the Harris County Toll Road
Authority and
II
SBC’s Takings Claim[2]
SBC contends that it is entitled to
compensation for its relocation expenses under article I, section 17 of the
Texas Constitution, which provides that “[n]o person’s property shall be taken,
damaged or destroyed for or applied to public use without adequate compensation
being made, unless by the consent of such person . . . .” Tex. Const. art. I, §
17. Governmental immunity “does not shield the State from an action for
compensation under the takings clause.” Gen. Servs. Comm'n
v. Little-Tex Insulation Co., 39 S.W.3d 591,
598 (
A
Common-Law Rule
The United States Supreme Court, in a case similar to this one, rejected a takings claim brought by a gas company forced to relocate its pipes to accommodate improvements to the city’s drainage system.
The gas company, by its grant from the city, acquired no exclusive right to the location of its pipes in the streets, as chosen by it, under a general grant of authority to use the streets. The city made no contract that the gas company should not be disturbed in the location chosen. In the exercise of the police power of the State, for a purpose highly necessary in the promotion of the public health, it has become necessary to change the location of the pipes of the gas company so as to accommodate them to the new public work. In complying with this requirement at its own expense none of the property of the gas company has been taken, and the injury sustained is damnum absque injuria.
New Orleans Gas Light Co. v. Drainage Comm’n of
Thus, under the “long-established
common law principle . . . a utility forced to relocate from a public
right-of-way must do so at its own expense.”
B
Utility Code Section 181.082
SBC argues that, notwithstanding this general rule, the statutory permission for it to “install a facility . . . in a manner that does not inconvenience the public in the use of the road, street, or water,” Tex. Util. Code § 181.082, grants it a property interest on which a takings claim may be based. While we have characterized a railroad’s interest granted by a local franchise as an “easement” for taxation purposes, Tex. & Pac. Ry. Co. v. City of El Paso, 85 S.W.2d 245, 248 (Tex. 1935), that does not answer whether SBC’s interest, arising from section 181.082, gives rise to its compensable takings claim. According to SBC, this statute, originally enacted in 1874, granted telephone companies “[i]n effect, . . . a private easement.” But, as a noted treatise recognizes:
The authorization to maintain rails, etc., in a particular part of the highway is not an easement or any other estate or interest in the land so occupied. On the contrary, it is merely a license to share in the public easement, and consequently a corporation maintaining rails, pipes, and wires in a public highway is not entitled to compensation for an invasion under legislative authority of the portion of the highway occupied by its structures. Consequently, this license may not be arbitrarily revoked as long as the highway remains public, and the enjoyment thereof cannot be interfered with for purely private ends. Yet when the continued undisturbed existence of the licensed structure does interfere with some other public need, the disturbance or removal of the structures or an alteration of their location is not a taking or even a damaging of property. The permission to use the highway for such structures has been granted upon an implied condition that the structures shall not interfere, either at the time that they are placed in position or thereafter, with any other public use to which the legislature sees fit to devote the way. When the condition takes effect, the privilege ceases to exist; it is not taken or damaged. To hold otherwise and to say that whenever, under the statutory permission, a gas pipe is laid in a public way the pipe cannot be disturbed, even to make such changes as are required by public travel, is to make what is merely a subordinate use paramount to the great important use for which the land is taken.
2-5 Julius L. Sackman, Nichols on Eminent Domain §
5.03[5][e] (3d ed. 2006) (“Nichols on Eminent Domain”) (emphasis added and citations
omitted); see also W. Union Tel. Co. v.
We recognized as much in 1913, when
we held that the limiting language in the grant to telephone companies was
“qualified by this important language, ‘in such manner as not to incommode the
public in the use of such road, streets and waters.’”
SBC asserts that telephone companies
are different from other utilities, pointing to section 181.082's silence on
relocation costs, and cites other statutes explicitly requiring utilities to
pay relocation costs in certain situations. See, e.g., Tex. Util. Code §§
181.025(b) (relocation of gas facility), 181.046(b) (relocation of electric
lines). There are also statutes, however, mandating the
converse. See, e.g., Tex. Transp. Code § 227.029(l) (providing that “the department, as
part of the cost of the project, shall pay the cost of the relocation . . . of
a public utility facility”); id. § 251.103
(providing that “a county may pay for relocation of a water line” under certain
circumstances, provided the water district agrees to repay the funds within
twenty years and with interest). Regardless, the statute’s silence on
relocation costs would mean that the common law rule applied, not that the
county was responsible for relocation costs. Moreover, none of our cases
supports the distinction SBC proposes. If telephone companies were somehow
different, we would not have said in City of Austin—a case in which
Southwestern Bell Telephone Company was a respondent—that “[i]t is clear that
respondents could be required to remove at their own expense any installations
owned by them and located in public rights of way whenever such relocation is
made necessary by highway improvements.” City of
The State, as amicus curiae,
contends that Texas law has authorized telegraph and telephone companies to use
public roads for 136 years, and never in that time has there been a single
decision under section 181.082 (or its predecessors) concluding that such
utilities have a right in the public roads that is compensable under the Texas
Constitution.
C
Transportation Code Section 251.102
SBC contends, however, that this
rule does not apply when another statute “pointedly requires” a governmental
entity to pay relocation costs. That, SBC argues, is the case with section
251.102. We have held, however, that “if a statute creates a liability unknown
to the common law, or deprives a person of a common law right, the statute will
be strictly construed in the sense that it will not be extended beyond its
plain meaning or applied to cases not clearly within its purview.” Satterfield v. Satterfield, 448 S.W.2d 456, 459 (
In its current form, section 251.102
provides that “[a] county shall include the cost of relocating or
adjusting an eligible utility facility in the expense of right-of-way
acquisition.” Tex. Transp. Code §
251.102 (emphasis added). “Eligible” is undefined, and the Fifth Circuit noted
its ambiguity in this context. Centerpoint Energy Houston Elec. LLC v.
Harris County Toll Road Auth., 436 F.3d 541, 545 (5th Cir. 2006), cert.
denied, 548 U.S. 907 (2006) (noting that “we have examined the statute, as
noted above, and find that the words ‘eligible utility facility’ remain
ambiguous”). Originally enacted in 1963 as former article 6674n-3, the statute
provided that “[i]n the acquisition of all highway rights-of-way by or for the
Texas Highway Department, the cost of relocating or adjusting utility facilities
which cost may be eligible under the law is hereby declared to be an
expense and cost of right-of-way acquisition.” Act of May 16, 1963, 58th Leg.,
R.S., ch. 240, § 1, 1963 Tex. Gen. Laws 654, 654 (emphasis added). The
emergency provision of that Act stated that it was necessary “in order to
clarify existing law as to the proper classification of costs incurred for the
relocation or adjustment of utility facilities as a part of the acquisition of
right-of-way.”
The statute was passed apparently in
response to Hardin County v. Trunkline Gas Co., 311 F.2d 882, 884 (5th
Cir. 1963), in which the court held that a county “was not obligated, indeed
could not legally obligate itself, to pay” costs incurred by a gas company
forced to extend the casing enclosing its pipelines when the state widened the
highways. The Fifth Circuit held that the gas company’s claim was not “a legal
claim,” as the county was not authorized “to contract to improve, construct or
reconstruct a State highway . . . [and was] expressly prohibited from expending
county funds therefor.”
When the 68th Legislature adopted the County Road and Bridge Act (former Article 6702-1) in 1983, article 6674n-3 was the source law for section 4.303 of the new law, which stated that “[t]he county should include the cost of relocating or adjusting eligible utility facilities in the expense of right-of-way acquisition. (V.A.C.S. Art. 6674n-3.).” Act of May 20, 1983, 68th Leg., R.S., ch. 288, § 1, 1983 Tex. Gen. Laws 1431, 1489 (emphasis added). In 1995, section 4.303 was codified, without substantive change, as section 251.102 of the Texas Transportation Code. Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1159, 1871 (now codified at Tex. Transp. Code § 251.102).
In one of only two decisions
interpreting section 251.102,[4]
the Fifth Circuit, in an Erie[5]
guess about Texas law, held that “eligible utility facility” meant “eligible
under the law,” which equated to a statutory right to reimbursement that
operated prospectively, dealt with a matter in which the public has a real and
legitimate interest, and was not fraudulent, arbitrary or capricious, based on
our decision in City of Austin. Centerpoint, 436
F.3d at 549-50. City of Austin, however, involved a different
statute—and one in which “eligible” was clearly defined. City of
for the purpose of securing the benefits of the Federal-Aid Highway Act of 1956, which authorize[d] the use of Federal funds to reimburse the state for the cost of relocating utility facilities in the same proportion as such funds are expended on a given project, with the proviso that Federal money shall not be used for that purpose when payment to the utility violates either state law or a legal contract between the utility and the state.
City of Austin, 331 S.W.2d at 740 (citing U.S.C. § 123).[6]
The utilities’ (Southwestern Bell Telephone Company among them) eligibility for reimbursement was undisputed; the only issue we considered was whether the State’s payment of relocation costs would be an unconstitutional donation for a private purpose. We concluded that it would not be and, in doing so, noted:
In the absence of assumption by the state of part of the expense, it is clear that respondents could be required to remove at their own expense any installations owned by them and located in public rights of way whenever such relocation is made necessary by highway improvements. . . . While public utilities may use [roads and streets] for laying their lines, such use is subject to reasonable regulation by either the state, the county or the city, as the case may be. The utility may always be required, in the valid exercise of the police power by proper governmental authority, to remove or adjust its installations to meet the needs of the public for travel and transportation.
. . .
Compensation is not required to be made for damage or loss resulting from a valid exercise of the police power.
In CenterPoint, the Fifth
Circuit examined these three factors to conclude that the relocation costs were
eligible, rather than constitutional—a rationale the court of
appeals in this case then adopted. CenterPoint, 436
F.3d at 549-50; 263 S.W.3d at 58-60.
These laws indicate that, when the
Legislature has determined that the government should pay a utility’s
relocation costs, the statutes clearly delineate classes of relocations that
are eligible for reimbursement. By contrast, section 251.102 contains no such
definition. If the Legislature intended for counties to pay
all utility relocation costs, it would have been a simple matter to so state.
See, e.g., Tex. Transp. Code § 227.029(l) (providing that “the department, as
part of the cost of the project, shall pay the cost of the relocation . . . of
a public utility facility”); id. § 366.171 (stating
that regional tollway authorities “shall pay the cost of relocation” of a
“public utility facility”); id. § 370.170(h) (regional mobility
authority “shall pay the cost of relocation” of a “public utility facility”).
Instead, the statute provides only that the county “include” relocation cost in
acquisition expenses, and only for those utilities that are “eligible.”
SBC asserts that
D
Ad Valorem Taxation
SBC also argues that if its
facilities are property for purposes of ad valorem taxation, they are property
for purposes of a takings claim. See City of Fort Worth v. Sw. Bell Tel. Co.,
80 F.2d 972, 975 (5th Cir. 1936) (concluding that “[i]f the right to maintain
the company’s poles, wires, and conduits . . . is property for purposes of
protection, it is property for purposes of taxation”). The court of appeals,
however, correctly noted that City of
III
SBC’s Statutory Claim
Many of the same reasons apply to
bar SBC’s direct claim under the statute. SBC contends that section 251.102
waives
As outlined above, section 251.102 falls short of meeting these exacting demands. While we have on rare occasions found waiver of sovereign immunity absent “magic words,” we have required clear indications of legislative intent to waive immunity under these circumstances:
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.
. . . .
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.
Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692,
697-98 (
We recently confronted a similar
issue in Texas Department of Transportation v. City of Sunset Valley,
146 S.W.3d 637, 642 (
If the acquisition of real property, property rights, or material by the department [of transportation] 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)
(emphasis added). We determined that section 203.058 did not waive governmental
immunity.
SBC has not argued that section 251.102 contains “magic words,” but rather that it requires reimbursement of utility relocation costs and thus necessarily waives immunity. But as discussed above, section 251.102 does not clearly require that SBC be reimbursed, nor, as the court of appeals correctly observed, is the statute meaningless absent a waiver of immunity:
The statute merely
states that a county, at the time it acquires a right-of-way to accommodate
county road construction, must include the cost of relocating eligible utility
facilities as part of its expense in acquiring the right-of-way. That is, the
county must budget not only for the cost of acquiring the right-of-way, but it
must also earmark funds to be paid to eligible utilities should they relocate
their facilities to accommodate road construction. Section 251.102's
requirement that funds be earmarked is a less apparent expression of a private
right of action than that found lacking by the Texas Supreme Court in
263 S.W.3d at 63. The Legislature may require counties to
earmark funds for a particular purpose without necessarily creating a private
right of action, because, for example, it expects counties to comply, or because
it considers the costs of litigation overly burdensome. See,
e.g., Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 375 (
SBC nevertheless contends that our
precedent supports a reimbursement action like this one. In City of
Because section 251.102 does not
clearly waive governmental immunity, and because
IV
Conclusion
We affirm the court of appeals’ judgment. Tex. R. App. P. 60.2 (a).
__________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: April 3, 2009
[1]
The State of
[2]
As a rule, we decide constitutional questions only when we cannot resolve
issues on nonconstitutional grounds. In the Interest of
B.L.D., 113 S.W.3d 340, 349 (
[3] Damnum absque injuria, or damage sine injuria, means a “[l]oss or harm that is incurred from something other than a wrongful act and occasions no legal remedy.” Black’s Law Dictionary 420-21 (8th ed. 2004).
[4] The second is the court of appeals’ decision in this case. 263 S.W.3d 48.
[5] Erie
R.R. Co. v. Tompkins, 304
[6]
[7]
In light of our conclusion on this issue, we do not reach