SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)(Jefferson) (eminent
domain, county entity immune to claim for reimbursement of costs of telephone line relocation necessitated
by toll road project, SWBT has no vested property interest in use of public way for transmission
equipment).
SOUTHWESTERN BELL TELEPHONE, L.P., D/B/A SBC TEXAS v. HARRIS COUNTY TOLL ROAD
AUTHORITY AND HARRIS COUNTY; from Harris County; 1st district (01-05-00668-CV, 263 SW3d 48, 09-
14-06)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court.
═══════════════════════════════════════════════════════════════════
Sw. Bell Tel., LP v. Harris County Toll Rd. Auth., 282 S.W.3d 59 (Tex. 2009)
═══════════════════════════════════════════════════════════════════
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 Harris County and throughout Texas. SBC
maintains underground telecommunications facilities in the public right-of-way along the Westpark Tollway
(formerly Westpark Road) pursuant to section 181.082 of the Texas Utilities Code. See Tex. Util. Code §
181.082 (“A telephone . . . corporation may install a facility of the corporation along, on, or across a public
road, a public street, or public water in a manner that does not inconvenience the public in the use of the
road, street, or water.”).
When the Harris County Toll Road Authority and Harris County (“Harris County”) began construction of
the Westpark Tollway in 2001, they required SBC to relocate its facilities in the right-of-way along
Westpark Road. SBC did so and billed the county for its costs. Harris County refused to pay, and this suit
followed. In the trial court, SBC asserted both a claim for reimbursement under Transportation Code
section 251.102 and a claim for inverse condemnation under article I, sections 17 and 19 of the Texas
Constitution. See Tex. Const. art. I, §§ 17, 19; Tex. Transp. Code § 251.102. The parties filed cross-
motions for summary judgment, and the trial court denied Harris County’s motion and granted SBC’s. The
court of appeals reversed, holding that Harris County was immune from suit on the statutory claim and that
SBC had no vested property interest in the right-of-way for the purposes of article I, section 17 of the
Texas Constitution. 263 S.W.3d 48, 52. We granted SBC’s petition for review.[1] 51 Tex. Sup. Ct. J. 77
(Nov. 2, 2007).
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 (Tex. 2001). To recover on an inverse condemnation claim, a property owner must establish that “(1)
the State intentiona lly performed certain acts, (2) that resulted in a ‘taking’ of property, (3) for public use.”
Id. Although the first and third elements are present here, Harris County asserts, and the court of appeals
held, that SBC does not have a vested property interest in the public right-of-way on which its facilities are
located. We conclude that whatever interest SBC has, that interest did not include the right to require the
county to pay for relocation of its facilities.
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 New Orleans, 197 U.S. 453, 462 (1905).[3]
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.” Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac
Tel. Co., 464 U.S. 30, 34 (1983). We have said that “[i]n the absence of assumption by the state of part of
the expense, it is clear that [utility companies] 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.” State v. City of Austin, 331 S.W.2d 737, 741 (Tex. 1960); see also
2-28 Sandra M. Stevenson, Antieau on Local Government Law, § 28.09[3] (2d ed. 2008) (“Under the
traditional common law rule, and in the absence of an agreement or statute to the contrary, whenever
state or local authorities make reasonable requests of a public utility to relocate, remove or alter its
structures or facilities, the utility must bear the cost of doing so, even though the public utility may be
operating pursuant to franchise from the local government.”).
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. Tarrant County, 450 S.W.
2d 763, 765-66 (Tex. Civ. App.—Fort Worth 1970, writ ref’d n.r.e.) (rejecting telegraph company’s takings
claim, despite the fact that lines had been installed forty-three years earlier pursuant to section 181.082's
predecessor; right to use the streets was a “permissive right” not a “vested” one, and utility had to bear its
own relocation costs).
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.’” Brownwood v. Brown Tel. & Tel. Co., 157 S.W. 1163, 1165
(Tex. 1913). We concluded that “[t]he effect of the limiting clause is to declare the right of the public to be
superior to the rights granted to the corporation.” Id. “The main purposes of roads and streets are for
travel and transportation, and while public utilities may use such roads and streets for the laying of their
telegraph, telephone and water lines, and for other purposes, such uses are subservient to the main uses
and purposes of such roads and streets.” City of San Antonio v. Bexar Metro. Water Dist., 309 S.W.2d
491, 492 (Tex. Civ. App.—San Antonio 1958, writ ref’d). When a telephone company installs its lines
pursuant to the statutory grant, “there is an implied condition that the facilities shall not interfere with the
public use, either at the time they are placed in position or thereafter.” City of Grand Prairie v. Am. Tel. &
Tel. Co., 405 F.2d 1144, 1146 (5th Cir. 1969) (noting that rule requiring utilities to relocate at their own
expense is “generally accepted as the prevailing view”).
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 Austin, 331 S.W.2d at 741.
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. Southwestern Bell’s contentions, according to the State,
would create a “newly minted property right.” Based on the authorities outlined above, we agree. Under the
traditional common-law rule—a rule unaltered by section 181.082—SBC would be required to bear its own
relocation costs.
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 (Tex. 1969). This is one such case.
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.” Id. §
4.
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.” Id. at 883, 885. While the gas
company’s petition for writ of certiorari was pending, the Legislature passed what is now section 251.102.
Trunkline Gas Co. v. Hardin County, 375 U.S. 8, 8 (1963) (granting certiorari and vacating judgment,
noting that “it appear[s] that the State of Texas has passed a statute in connection with controversies of
this kind since the petition for a writ of certiorari was filed in this Court”). On remand, the Fifth Circuit held
that the newly enacted statute did not change the result, because “[t]he Legislature cannot, by curative
statute, appropriation, or otherwise, authorize payment under a contract made without authority of law.”
Hardin County v. Trunkline Gas Co., 330 F.2d 789, 793 (5th Cir. 1964).
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 Austin, 331 S.W.2d at 740. The relevant statute in that case (passed
six years before what is now section 251.102) provided that utilities required to relocate as part of the
improvement of highways established as part of the National System of Interstate and Defense Highways,
would do so “at the cost and expense of the State . . . provided that such relocation was eligible for
Federal participation.” Act of May 23, 1957, 55th Leg., R.S., ch. 300, § 4A, 1957 Tex. Gen. Laws 724, 729,
repealed by Acts 1995, 74th Leg., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1031, 1970 (current version at
Tex. Transp. Code § 203.092 (a) (1)). The statute was passed
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.
Id. at 741-43; see also id. at 746 (noting that “[n]o part of the expense will be paid by the state, of course,
if the relocation is not eligible for Federal participation”). In concluding that the reimbursement of relocation
costs was not an unconstitutional gift, we relied on three factors: the statute operated prospectively, dealt
with a matter in which the public had a real and legitimate interest, and was not fraudulent, arbitrary, or
capricious. Id. at 743.
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. Harris County asserts—and the State agrees—that the Fifth
Circuit’s interpretation is incorrect. Instead, Harris County argues, “eligible utility facility” in section 251.102
means that the project in question is eligible for federal participation or the utility has a compensable
property interest in the land occupied by the utility, based on the current version of the statute we
construed in City of Austin and the caselaw at the time section 251.102 was originally enacted. See Tex.
Transp. Code § 203.092 (a) (1) and (2) (providing that a “utility shall make a relocation . . . at the expense
of this state if . . . relocation of the utility facility is required by improvement of a highway in this state
established . . . as part of the National System of Interstate and Defense Highways and the relocation is
eligible for federal participation” or “the utility has a compensable property interest in the land occupied by
the facility to be relocated”) (emphasis added); City of Austin, 331 S.W.2d at 746 (reimbursement required
if relocation was eligible for federal participation); Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537,
543 (Tex. Civ. App.—Texarkana 1961, writ ref’d) (reimbursement required if utility had purchased
easements from private owners).
Harris County’s argument is plausible, if too narrow. Section 251.102 does not define what is “eligible”; it
merely states that counties shall include relocation costs for such facilities. Other statutes clearly speak to
the subject. As noted, relocation costs must be paid if the relocation “is eligible for federal participation,” if
“the utility has a compensable property interest in the land occupied by the facility to be relocated,” or,
under certain circumstances, if the project involves improvement of “a segment of the state highway
system that was designated by the commission as a turnpike project or toll project before September 1,
2005.” Tex. Transp. Code § 203.092 (a) (1), (2), and (3). Yet another statute provides for discretionary
reimbursement by the highway department if the commission finds that relocation is essential to the timely
completion of the project, continuous utility service is essential to the public well-being, the utility’s ability to
operate would be adversely affected if it paid the relocation cost, and the utility and the department agree
regarding appropriate safeguards, minimization of disruption, and choice of contractors. Id. § 203.0921.
Still another provides that “a county may pay for relocating a water line” under certain circumstances,
provided the water district agrees to repay the funds within twenty years and with interest. Id. § 251.103.
Section 203.094, dealing with timely relocations, speaks to a utility that is “eligible for reimbursement under
section 203.092 or that is eligible for reimbursement under applicable law and the policies of the
department for the cost of relocating facilities.” Id. § 203.094. Each of these statutes describes various
scenarios under which utilities might be eligible for reimbursement of relocation costs.
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.” Id. § 251.102. SBC’s
relocation costs in this case are not clearly within the statute’s purview, and SBC cites no other provision
that would make it “eligible.”[7] Satterfield, 448 S.W.2d at 459.
SBC asserts that Harris County ignores the “equities of requiring toll road users, rather than the general
public, to pay the true costs of constructing a toll road.” While requiring reimbursement of utility relocation
costs for toll roads may be the better policy, that is a decision for the Legislature. Moreover, mandating
reimbursement under section 251.102 would mean that all counties would have to reimburse all utility
relocation costs for all acquisition projects, not just toll roads. Absent a clearer indication from the
Legislature, we cannot conclude that this is what the statute requires.
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 Fort Worth involved taxation, not inverse condemnation, and that the case
“expressly recognized that the predecessor to section 181.082 at issue in that case reserved ‘a
supervision through the municipality as to the placing and alteration of the [utility’s] fixtures.’” 263 S.W.3d
at 68 n.13 (quoting City of Fort Worth, 80 F.2d at 976); see also W. Union, 450 S.W.2d at 766 (holding
that telegraph company had to relocate at its own expense; authorities cited regarding ad valorem taxation
were inapposite). Thus, while SBC has a property interest in its facilities, that interest is subject to the
terms of the original grant. When, under a valid exercise of the police power, the facilities inconvenience
the public, they must be moved at SBC’s expense. While our answer might be different if SBC faced the
complete removal of its facilities, rather than their relocation, that is not the case here. See, e.g., 2-5
Nichols on Eminent Domain § 5.03 (“Where the change requires not merely the relocation of the facilities,
but the complete removal of the facilities from the right of way, compensation must be made.”); City of
Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 659 (1912) (“It is claimed that in consequence of
these laws the street rights granted the Ohio Valley Telephone Company have been withdrawn, or at least
made subject to municipal revocation.”).
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 Harris County’s governmental immunity and requires reimbursement of relocation costs.
But as we have often noted, the Legislature is best positioned to waive or abrogate sovereign immunity
“because this allows the Legislature to protect its policymaking function.” Tex. Natural Res. Conservation
Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002) (citations omitted) (collecting cases). Any such waiver
must be clear and unambiguous. Tex. Gov’t Code § 311.034 (“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.”); Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006).
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 (Tex. 2003) (citations omitted).
We recently confronted a similar issue in Texas Department of Transportation v. City of Sunset Valley,
146 S.W.3d 637, 642 (Tex. 2004). That case involved Transportation Code section 203.058(a), which
provides:
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. Sunset Valley, 146 S.W.3d at 642-43. As we observed, the statute’s language did
not clearly indicate the Legislature’s intent to waive immunity, but instead merely required the Department
of Transportation to make “adequate compensation” using certain accounting procedures. Id. at 642.
(citations omitted). And while “the statute imposes a financial obligation on the State,” this “does not in
itself mean that the Legislature intended to create a private right of action, as evidenced by the fact that
the statute expressly vests the power to determine adequate compensation in the General Land Office.” Id.
at 642-43. Further, the statute was not meaningless without a waiver of immunity because it “provide[d] a
mechanism by which state agencies may ensure budgetary protection when property is transferred
between them.” Id. at 643.
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 Sunset Valley. Compare
Tex. Transp. Code Ann. § 203.058(a) (“[A]dequate compensation for the real property . . . shall be
made.”) (emphasis added) with id. § 251.102 (“A county shall include the cost of relocating . . . an eligible
utility facility in the expense of right-of-way acquisition.”) (emphasis added).
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 (Tex. 2006). And, as explained more fully above in our “takings” analysis,
when we compare those statutes that explicitly provide for relocation reimbursements, the Legislature
regularly attaches specific criteria that are absent here. See Wichita Falls State Hosp., 106 S.W.3d at 697-
98.
SBC nevertheless contends that our precedent supports a reimbursement action like this one. In City of
Austin, 331 S.W.2d at 742, we considered whether a statute requiring reimbursement of certain utility
relocation costs was an unconstitutional gift or donation. SBC contends that we would not have reached
the merits in that case if the State had been immune from suit. City of Austin, however, did not address the
state’s immunity from suit, as it was a declaratory judgment action filed by the state. Id. at 740. Moreover,
although the Fifth Circuit’s recent decision in CenterPoint, 436 F.3d 541, discussed reimbursement of
utility relocation costs pursuant to the same statute at issue here, that case did not discuss immunity, as
Harris County waived immunity from suit under that court’s “waiver-by-removal” rule. See CenterPoint, 436
F.3d at 543; Meyers v. Tex., 410 F.3d 236, 256 (5th Cir. 2005).
Because section 251.102 does not clearly waive governmental immunity, and because Harris County has
not otherwise waived its immunity from suit, SBC’s statutory reimbursement claim is barred.
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 Texas and GTE Southwest Incorporated d/b/a Verizon Southwest submitted amicus curiae
briefs.
[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 (Tex. 2003). Because there is some overlap
between SBC’s takings claim and Harris County’s alleged immunity, and because SBC’s waiver-of-immunity
claim fails for the reasons discussed below, we address the issues in reverse order.
[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 U.S. 64 (1938).
[6] Texas was one of sixteen states to pass such a statute in response to the Federal-Aid Highway Act of
1956. The Act had originally been intended to reimburse utility relocation costs only in those states in
which, by statute or practice, the common law rule had been altered. Norfolk Redevelopment & Hous. Auth.
v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 39 (1983) (“The question of utility reimbursement was,
thus, left to the laws of the individual States, with no congressional displacement of those laws.”). Instead,
sixteen states responded to the Act by passing legislation authorizing reimbursement of utility relocation
costs whenever a project was eligible for federal reimbursement. Id. at 40 n.17. The Senate Public Works
Committee expressed concern over this “drastic change in existing practices,” noting that “‘the use of
Federal funds for reimbursement to the States for this purpose will increase substantially, thereby reducing
the amount of Federal funds available for construction of highways.’” S. Rep. No. 1407, 85th Cong., 2d
Sess., 28 (1958); Norfolk Redevelopment, 464 U.S. at 40.
[7] In light of our conclusion on this issue, we do not reach Harris County’s argument that section 251.102
is inapplicable because the county did not “acquire” any property in connection with this construction
project.