# Opinion

> Texas Supreme Court · March 20, 2015

URL: https://www.frixlaw.com/law-library/cases/2831471

## Case

- **Full name:** Southwestern Bell Telephone, L.P. D/B/A At&t Texas v. Ed Emmett, El Franco Lee, Jack Morman, Steve Radack, and R. Jack Cagle, as Members of the Harris County Commissioners' Court Michael Marcotte, as Director of the City of Houston Department of Public Works and Engineering And City of Houston
- **Court:** Texas Supreme Court
- **Decided:** March 20, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2831471

## How later opinions describe it (automated extraction)

- concluding that an employee’s actions were not ministerial because a classroom discipline plan required deliberation and was discretionary where the mandate failed to instruct, among other things, which conduct required discipline and when and where to discipline the students
- recognizing instances where jurisdictional analysis will require the examination of the merits of the cause of action
- recognizing that absent the State’s assumption of part of the expense, utility owners bear the financial burden of relocating facilities on public rights-of-way

## Opinion text

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 13-0584
444444444444

SOUTHWESTERN BELL TELEPHONE, L.P. D/B/A AT&T TEXAS, PETITIONER,
v.

ED EMMETT, EL FRANCO LEE, JACK MORMAN, STEVE RADACK, AND R. JACK
CAGLE, AS MEMBERS OF THE HARRIS COUNTY COMMISSIONERS’ COURT;
MICHAEL MARCOTTE, AS DIRECTOR OF THE CITY OF HOUSTON DEPARTMENT OF
PUBLIC WORKS AND ENGINEERING; AND CITY OF HOUSTON, RESPONDENTS

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

Argued December 10, 2014

JUSTICE JOHNSON delivered the opinion of the Court.

JUSTICE BROWN did not participate in the decision.

Southwestern Bell Telephone, L.P. doing business as AT&T Texas (AT&T), a public utility

company with facilities attached to a city bridge designated to be demolished, sought a declaratory

judgment that the Harris County Flood Control District must bear the costs of relocating AT&T’s

facilities pursuant to Texas Water Code § 49.223. The trial court determined that the District was

not responsible for the relocation costs and the court of appeals affirmed.
We conclude that the District made the relocation necessary within the contemplation of

§ 49.223. We reverse in part and affirm in part the judgment of the court of appeals.

I. Background

The Harris County Flood Control District is a governmental agency created pursuant to the

Texas Constitution. TEX . CONST . art. XVI, § 59(b); Act of May 15, 1937, 45th Leg., R.S., ch. 360,

1937 Tex. Gen. Laws 714. Its “rights, powers, privileges, and functions” include “devis[ing] plans

and construct[ing] works to lessen and control floods.” Act of May 15, 1937 § 2e.

The governing body of the District, the Harris County Commissioners Court, adopted the

Brays Bayou Flood Damage Reduction Plans in order to widen and deepen the Brays Bayou Channel

and thereby reduce flooding around the Bayou. Project Brays calls for the creation of several water

detention basins and the destruction of thirty bridges spanning Brays Bayou. The channel could have

been widened without demolishing the bridges by widening all of the channel except those portions

where the bridges attach, but the District elected to widen the entire channel, which required

demolishing and reconstructing the bridges. Destruction of the bridges requires the utilities on the

bridges to be relocated. Texas Water Code § 49.223 requires that relocation of utility facilities be

done at the sole expense of the District when the District’s exercise of power “makes necessary”

such relocation. TEX . WATER CODE § 49.223(a).

Project Brays calls for demolition and reconstruction of bridges controlled by the City of

Houston, so the District and the City entered into the Brays Bayou Flood Damage Reduction Plan

Interlocal Agreement, detailing the responsibilities of each entity. The Interlocal Agreement

encompassed two projects, but only Project I is at issue in this case. Under Project I, the District

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agreed to “design, construct, replace, extend, or modify” a number of the bridges the City controlled.

One pertinent aspect of the Interlocal Agreement is Section 8, whereby the City, after receiving

notice from the District, would issue relocation notices to third parties such as public utility

companies, instructing that they relocate their facilities from a bridge right-of-way at the third

parties’ own expense. The relevant language of the agreement is:

The District may require the modification and/or relocation of facilities owned by one
or more third parties to Construct Project I bridges and utilities, including but not
limited to public utility companies. Where the City has the right to require a public
utility company or other third party to modify and/or relocate its facilities at its own
cost, the City shall designate the District as the City’s project manager, and upon
written request by the Director of the District made to the Director of Public Works
and Engineering, direct the public utility company or other third party to modify
and/or relocate its facilities in conjunction with the construction of Project I, at no
cost to the City or to the District.

AT&T owns telecommunication facilities on the Forest Hill Street Bridge, which Project

Brays designated for destruction. Therefore, as adopted by the District, Project Brays requires that

AT&T’s facilities be relocated.

After numerous correspondences between AT&T, the City, and the District, the District’s

Flood Control Director contacted Michael Marcotte, Director of the Department of Public Works

and Engineering for the City. Per the Interlocal Agreement, Marcotte was requested to have the City

direct AT&T to relocate its facilities from the Bridge without cost to the City or the District. The

City then sent AT&T a letter indicating that if AT&T failed to relocate its facilities, the City would

relocate them and assess the costs against AT&T. See HOUSTON , TEX ., CODE OF ORDINANCES ch.

40, art. XVIII, § 40-393(a) (2005).

3
AT&T sued the City, Marcotte in his official capacity, and the County Commissioners in

their official capacities, seeking an injunction preventing the removal of its facilities from the Bridge

and a declaratory judgment that § 49.223 of the Texas Water Code requires the District to bear any

relocation costs resulting from Project Brays. The Commissioners responded by filing pleas to the

jurisdiction and the remaining parties filed cross-motions for no-evidence and traditional summary

judgments.

The trial court granted the Commissioners’ plea to the jurisdiction and summary judgment

to Marcotte and the City. The court of appeals affirmed. Sw. Bell Tel. L.P. v. Emmett, 401 S.W.3d

826 (Tex. App.—Houston [14th Dist.] 2013). The appeals court reasoned that the relocation costs

sought by AT&T were not clearly within the statute’s purview because the District was not shown

to have made the relocation necessary, due in large part to (1) the City’s involvement in Project I and

(2) the testimony of Project Brays’s Manager that the bridge had not been demolished yet and it

could be left intact, resulting in the channel remaining narrow at the bridge crossing. Id. at 838, 840.

In this Court, AT&T contends that the court of appeals misconstrued § 49.223 by failing to

give effect to the plain meaning and purpose of the statute, relying instead on Air Liquide America

Corp. v. United States Army Corps of Engineers, 359 F.3d 358 (5th Cir. 2004), where the United

States Court of Appeals for the Fifth Circuit interpreted a different Texas statute. Further, AT&T

maintains that the District “made necessary” the relocation of its facilities within the meaning of §

49.223 because (1) the statute does not mandate that the District be the sole cause of relocation

before it is responsible for expenses of relocation, (2) the District has the power to devise and

implement flood control plans, and (3) the District adopted the version of Project Brays requiring

4
the demolition and reconstruction of the Bridge, so the availability of another plan leaving the Bridge

in place does not lessen the District’s role in necessitating relocation of AT&T’s facilities if they

must be relocated as a result of Project Brays.

In support of the trial court’s decision the District argues that § 49.223 is inapplicable

because (1) “it was the City—not the District—that ‘made necessary the relocation’; and (2) it was

the City—not the District—that exercised the power to direct AT&T to move its wires.” In order

for the District to be responsible for relocation expenses, the District principally contends, its

exercise of power must be sufficient in and of itself to “make necessary” relocation, and because the

City is a home-rule municipality, the City has exclusive jurisdiction over the roadways and bridges

and the bridge could not be destroyed without its consent. Therefore, its argument goes, any exercise

of power by the District is insufficient to authorize and make necessary the relocation of the

facilities, absent the City’s acquiescence.

The Commissioners contend that AT&T failed to allege any conduct by them that would

serve to waive their immunity. Thus, they assert that the trial court correctly granted their collective

plea to the jurisdiction.

The primary issue before us is whether the District’s exercise of power will make necessary

the relocation of AT&T’s facilities if and when the Bridge is demolished, essentially (1) whether the

district exercised one of its powers, and (2) whether that exercise of power will make relocation of

AT&T’s facilities necessary. Although ordinarily we would first consider whether the

Commissioners have governmental immunity from suit, which would implicate the trial court’s

subject matter jurisdiction, we begin by considering the proper construction of Texas Water Code

5
§ 49.223. That is because whether the Commissioners’ conduct constitutes ultra vires actions that

falls within an exception to governmental immunity depends on what the statute required of the

District. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004)

(recognizing instances where jurisdictional analysis will require the examination of the merits of the

cause of action); Gattis v. Duty, 349 S.W.3d 193, 206 (Tex. App.—Austin 2011, no pet.).

II. Discussion

A. Standard of Review

We review summary judgments de novo. When faced with competing summary judgment

motions where the trial court denied one and granted the other, we consider the summary judgment

evidence presented by both sides, determine all questions presented, and if the trial court erred,

render the judgment the trial court should have rendered. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).

B. Texas Water Code § 49.223

Under the common law, a utility company must relocate facilities located in a public right-of-

way at its own expense. Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 62 (Tex.

2009) (citing Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S.

30, 34 (1983)). However, the common law only controls in the absence of legislative action. Cf.

State v. City of Austin, 331 S.W.2d 737, 741 (Tex. 1960) (recognizing that absent the State’s

assumption of part of the expense, utility owners bear the financial burden of relocating facilities on

public rights-of-way).

Section 49.223(a) of the Texas Water Code provides:

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In the event that the district or the water supply corporation, in the exercise of the
power of eminent domain or power of relocation or any other power, makes
necessary the relocation . . . of any road, bridge, highway, railroad, electric
transmission line, telegraph, or telephone properties, facilities, or pipelines, all
necessary relocations . . . shall be done at the sole expense of the district or the water
supply corporation unless otherwise agreed to in writing. Such relocation shall be
accomplished in a timely manner so that the project of the district or the water supply
corporation is not delayed.

TEX . WATER CODE § 49.223(a) (emphasis added). Where a statute appears to depart from the

common law and seeks to impose liability, “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.”

Smith v. Sewell, 858 S.W.2d 350, 354 (Tex. 1993). Accordingly, in the absence of a statutory

definition of “made necessary,” we will ascribe to the text its plain meaning. See Union Carbide

Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014) (“We construe a statute’s words according to

their plain and common meaning unless they are statutorily defined otherwise, a different meaning

is apparent from the context, or unless such a construction leads to absurd results.”). Statutory

construction also requires us to take statutes as we find them, understanding that the Legislature

purposefully selected the words chosen. See id.

With these principles in mind we look to the plain meaning of the precise text chosen by the

Legislature. Black’s Law Dictionary defines “make” as “to cause (something) to exist.” BLACK’S

LAW DICTIONARY 1099 (10th ed. 2014). Likewise, Webster’s Dictionary defines “make” as “cause

to exist or happen.” WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY 1161 (1996 ed.).

Turning to the same sources for an understanding of the plain meaning of “necessary,” we determine

it to be something that is essential or needed for some purpose. See id. at 1283-84 (defining

7
“necessary” as “being essential, indispensable, or requisite”); BLACK’S, supra, at 1192 (“That is

needed for some purpose or reason.”). Accordingly, we must determine whether the District’s

exercise of its power caused the need for AT&T’s facilities to be relocated.

The Act of May 15, 1937 outlines the powers of the District. As noted earlier, the District

is charged with designing plans and constructing works to manage flood waters. Section 2 of the

Act, entitled “Added Powers,” includes “[t]o cooperate with, or to contract with, the City of Houston

. . . in relation to surveys, the acquisition of land or right of ways, the construction or maintenance

of projects or parts thereof or the financing of the same in connection with any matter within the

scope of this Act.” Act of May 15, 1937 § 2. The District exercised its enumerated power to

contract with the City of Houston when it entered into the Interlocal Agreement.1

Section 8 of that agreement required the City to name the District as its Project Manager.

The agreement in turn provides that the District, as the Project Manager, has the power to require

the City to send notice of relocation upon its written request: “[T]he City shall designate the District

as the City’s project manager, and upon written request by the Director of the District made to the

Director of Public Works and Engineering, direct the public utility . . . to relocate its facilities in

conjunction with the construction of Project I.” (emphasis added). As a result of the District’s power

to contract with the City of Houston, the District, through the exercise of such power, gained

contractual authority to require the City to send notice to relocate AT&T’s facilities.

1
The District contends that it also acted pursuant to its power of relocation. However, because we determine
that it exercised its authorized powers in contracting with the City for contractual authority to require the City to act, we
need not reach that argument.

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Furthermore, the degree of the District’s involvement in causing the bridge demolition,

thereby requiring the relocation of AT&T’s facilities, is highlighted by the fact that apart from

Project Brays the City had no intent to remove or reconstruct the bridge. Absent the District’s flood

control plan, the bridge would not have been scheduled to be demolished and AT&T would not need

to relocate its facilities. So, the District caused the relocation of the facilities to become necessary

by adopting Project Brays and contracting with the City to effectuate it. Therefore, the District made

necessary the relocation of AT&T’s facilities within the meaning of § 49.223.

The court of appeals held that relocation of AT&T’s facilities was not necessary, focusing

on testimony that the channel could still be widened without removal of the bridge. But the

availability of an alternate plan that was never adopted is irrelevant to whether the actual plan

adopted by the District “makes necessary” relocation. If the mere availability of other plans was the

standard, no District plan might ever make relocation necessary. Further, if the District changes its

plan and the bridge is not demolished so AT&T’s facilities are not required to be relocated, then an

expense will not be borne by anyone; the District’s fate as to the relocation expenses is in its own

hands.

The District cites the Fifth Circuit’s decision in Air Liquide as support for its contention that

the statutory “made necessary” language is met only when the District’s exercise of power is solely

sufficient to necessitate the relocation. It asserts this is not the case here because the City has

exclusive control of the bridges within its jurisdiction. We disagree both with the District’s analysis

of Air Liquide and its exclusive power argument.

9
Air Liquide concerned the cost allocation for the relocation of a pipeline under the Houston

Ship Channel. Id. at 360. The channel was to be widened as a joint project of the U.S. Army Corps

of Engineers and the Port of Houston Authority. Id. The case addressed both a different Texas

Water Code section (mandating the Port pay relocation costs if the relocation was “required”), and

identified that Texas law was not controlling, relying instead on the federal Rivers and Harbors Act

of 1899. Id. However, the case bears some resemblance to the instant case because the Corps issued

removal notices to the pipeline owners at the Port’s request. Id. at 361. Given that circumstance, the

Fifth Circuit scrutinized the Port’s lack of power, stressing that the cooperation agreement between

the Corps and the Port “did not require the Corps to exercise its permit authority; and it certainly did

not empower the Port to mandate the Corps to require pipeline relocation.” Id. at 363.

The power the Port lacked in Air Liquide resides in the District under the facts before us. The

City and the District have an agreement through which the District can require the City to issue

relocation notices to utilities and ostensibly spare the District the expense of relocating their

facilities. Given that state of facts, Air Liquide supports the contention that the District’s exercise

of its contractual authority led to the City’s issuance of the relocation demand and notice.

Even if this Court determines as it did that the situation at hand is clearly within the purview

of § 49.223, Marcotte and the Commissioners next argue, such an interpretation is untenable because

it conflicts with Texas Utilities Code § 54.203(c)2 and a City of Houston ordinance.3 But Texas

2
§ 54.203. Service in Annexed or Incorporated Area
. . .
(c) The governing body of a municipality may require a certificated telecommunications utility to relocate the utility's
facility at the utility's expense to permit the widening or straightening of a street by:

10
Water Code § 49.223 requires the District to pay for relocation while Texas Utility Code § 54.203(c)

requires the utility owner to pay vis-à-vis the City. There is no contention here that the City is

responsible for relocation costs. In fact, the parties have signed a Rule 11 Agreement to the effect

that the City is not responsible for relocation costs. So, as applied to the matter before us, no conflict

exists between a statute providing that as between a district and a utility, the district pays, and a

statute providing that as between a municipality and a utility, the utility pays. Nor does the fact that

the City has elected to finance the widening of the Bridge as part of the District’s Project Brays

change our view. Where the City merely finances an addition to a previously planned and adopted

District project that requires the relocation of a utility’s facilities, the partnering of the two entities

does not serve to override the text and intent of Water Code § 49.223 or create a conflict with

Utilities Code § 54.203.

(1) giving the utility 30 days' notice; and

(2) specifying the new location for the facility along the right-of-way of the street.

T EX . U TIL . C O D E § 54.203(c).

3
Sec. 40-393. Relocation required.

(a) W henever the city engineer determines, in the exercise of sound engineering judgment, that a facility should be
relocated for the accomplishment of a public works project, the owner of the facility shall relocate the facility at the
owner's sole expense in accordance with this article. In the event that an owner's failure to timely relocate a facility in
accordance with this article causes the city to incur expenses, damages or losses, including loss of grant funds, for any
resulting delay, the owner of the facility shall be responsible for the city's expenses, damages or losses.

(b) It shall be the policy of the city to design public works projects to minimize the relocation of facilities, but the city
shall not be obligated to design a public works project to avoid facility relocation and the determination of the city
engineer of the appropriate design of the public works project shall be final.

H O U STO N , T EX ., C O D E O F O RDIN AN CES ch. 40, art. XVIII, § 40-393.

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As for the alleged conflict between the Houston Ordinance and Water Code § 49.223, we find

the answer in the explicit language of a latter section of the same article of the Ordinance. Section

40-397 states: “Nothing in this subsection shall preclude the application of funds from sources other

than the city to the payment of relocation expenses on behalf of the owner of a facility.” HOUSTON ,

TEX ., CODE OF ORDINANCES ch. 40, art. XVIII, § 40-397(f). As such, even had there been a conflict,

the language illustrates that Water Code § 49.223's requirement that the District pay the utilities’

costs is entirely permissible and even contemplated by the Ordinance.

Finally, we address the Commissioners’ contention that if § 49.223 requires the District to

pay for relocation of the facilities, it is unconstitutional as applied. The Commissioners argue that

§ 59 of Article XVI of the Texas Constitution, under which the District was organized as a

conservation and reclamation district, does not contemplate expending district tax funds for

relocation of public utilities’ facilities. We disagree.

We recognized in State v. City of Austin, 331 S.W.2d 737, 743 (Tex. 1960), that legislative

acts mandating payment to a utility for the relocation of its facilities do not contravene the

Constitution as long as “the statute creating the right of reimbursement operates prospectively, deals

with the matter in which the public has a real and legitimate interest, and is not fraudulent, arbitrary

or capricious.” We identified uninterrupted or minimally interrupted utility services as being vital

to the public’s welfare:

Utilities are necessary adjuncts of the public welfare. Their business operations and
their property have been subject to special legislative treatment for many years . . .
In the present context, uninterrupted service during and after the completion of the
. . . project is vital. Where removal of facilities is necessary, it is important that

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relocation be as expeditious and controversy-free as possible. That end is intimately
related to the achievement of the overall public purpose.

Id. at 745 (quoting Wilson v. City of Long Branch, 142 A.2d 837, 847 (N.J. 1958). Because the

relocation of AT&T’s facilities concerns a matter of public interest and is appropriate to the

District’s flood control purpose, § 49.223's allocation of district funds to accomplish relocation of

those facilities for the District’s Project Brays is not unconstitutional as applied here. TEX . CONST .

art. XVI, § 59 (“[T]he Legislature shall pass all laws as may be appropriate thereto.”).

Because the District exercised one of its powers and made relocation of AT&T’s facilities

necessary, the relocation costs come within the provisions of § 49.223. Thus, the trial court erred

by granting summary judgment in favor of the City and the court of appeals erred by affirming that

judgment.

We next consider the claim that Marcotte and the Commissioners have immunity. See

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) (“Because the trial

court’s order does not specify the grounds for its summary judgment, we must affirm the summary

judgment if any of the theories presented to the trial court and preserved for appellate review are

meritorious.”).

C. Ultra Vires Claims

Governmental immunity implicates a court’s jurisdiction and serves to protect political

subdivisions of the state from both suit and liability. See Rusk State Hosp. v. Black, 392 S.W.3d 88,

95 (Tex. 2012). While a legislative waiver of governmental immunity is usually required for suit

against a governmental entity, “an action to determine or protect a private party’s rights against a

13
state official who has acted without legal or statutory authority is not a suit against the State that

sovereign immunity bars.” City of El Paso v. Heinrich, 284 S.W.3d 366, 368 (Tex. 2009) (quoting

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997)). Such claims must be brought against

the state actor in her official capacity because the State and its subdivisions remain immune. Id. at

373. And while a suit for injunctive and declaratory relief brought against an officer in her official

capacity is not shielded by immunity from suit, the available relief is restricted because “the suit is,

for all practical purposes, [a suit] against the [governmental entity],” and the governmental entity is

generally immune from claims for retrospective monetary relief. Id. at 374. However, as we

identified in Heinrich, while declaratory judgment claims seeking “retrospective monetary [relief]

are generally barred by immunity,” claims for prospective payment in accord with a statutory

obligation are not necessarily barred. Id. at 374. For the ultra vires exception to immunity to apply,

it must be proved that the state actor either failed to perform a ministerial task or acted without legal

authority. Id. at 372.

Ministerial acts are those “where the law prescribes and defines the duties to be performed

with such precision and certainty as to leave nothing to the exercise of discretion or judgment.” City

of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994). Discretionary acts on the other hand

require the exercise of judgment and personal deliberation. See Ballantyne v. Champion Builders,

Inc., 144 S.W.3d 417, 425 (Tex. 2004).

1. Commissioners’ Plea to the Jurisdiction

Where a plea to the jurisdiction challenges the pleadings, as the Commissioners did below,

a reviewing court must determine whether the party asserting jurisdiction has alleged facts that

14
affirmatively demonstrate or negate the trial court’s subject matter jurisdiction. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). This determination is a question of law,

which we review de novo. Id.

AT&T alleged that the Commissioners acted ultra vires by their clear and extended refusal

to accept responsibility for repayment of AT&T’s relocation costs and by directing the City to send

the relocation notice. AT&T urges that such clear repudiation of the District’s statutory obligation

is in violation of their duty and that declaratory relief is not barred by immunity even though it would

compel prospective payment. We agree.

The Commissioners argue that AT&T has not alleged that they have taken actions placing

them within the ultra vires exception to immunity. But the Commissioners sidestepped AT&T’s

attempts to work out an agreement for the District to bear the relocation costs of the facilities for a

number of years by refusing to respond to correspondences requesting a written costs agreement.

The District eventually responded by instructing the City to send a notice to AT&T directing it to

relocate its facilities at its own expense. If AT&T relocated its facilities and then sought

reimbursement from the District, its claim—whether styled as one for damages or declaratory

relief—would run afoul of the District’s governmental immunity because AT&T would be seeking

retrospective monetary relief. The Commissioners’ execution of the letter directing the City to send

the relocation notice overtly evidenced their refusal to comply with Water Code § 49.223's

requirement that the District pay the utilities’ costs by affirmatively acting in a manner that was

intended to force AT&T to bear the relocation costs. The Commissioners’ actions unequivocally

demonstrated their intent not to comply with the statute. AT&T’s only viable option for enforcement

15
of § 49.223 at that point was to bring suit seeking a declaratory judgment and prospective relief as

to the District’s obligations under the statute.

The next question is whether the Commissioners’ anticipatory refusal to comply with the

statute qualifies as a ministerial act or was undertaken without legal authority, placing the conduct

within the ultra vires exception to governmental immunity.

Section 49.223 mandates that the District will bear the costs of relocation where exercise of

the District’s power makes such relocation necessary:

In the event that the district or water supply corporation, in the exercise of the power
of eminent domain or power of relocation or any other power, makes necessary the
relocation . . . of any road [or] bridge . . . all necessary relocations . . . shall be done
at the sole expense of the district or water supply corporation unless otherwise agreed
to in writing.

TEX . WATER CODE § 49.223(a). The use of the word “shall” evidences the mandatory nature of the

duty imposed, and the statue provides under what circumstances the District is to bear the expense.

Cf. Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996) (concluding that an employee’s actions

were not ministerial because a classroom discipline plan required deliberation and was discretionary

where the mandate failed to instruct, among other things, which conduct required discipline and

when and where to discipline the students). The statute also contains no indication that the District

is to conduct any form of review, deliberation, or judgment in exercising its payment obligation. In

other words, if the District’s exercise of power made necessary the utilities relocation, the statute

requires the District to bear the relocation costs. See McLane Co. v. Strayhorn, 148 S.W.3d 644, 650

(Tex. App.—Austin 2004, pet. denied) (finding immunity barred suit because the statute granted

discretion to the comptroller to determine the adequacy of collateral when it stated “similar types of

16
collateral acceptable to the comptroller.”); Tex. Racing Comm’n v. Marquez, No. 03-09-00635-CV,

2011 WL 3659092, at *5 (Tex. App.—Austin Aug. 19, 2011, no pet.) (mem. op.) (concluding that

director did not have discretion to not docket an administrative appeal where relevant administrative

code stated: “If after a reasonable time the proceeding cannot be settled through agreement, the

executive secretary shall refer the matter to SOAH”). Thus, because § 49.223 imposes a purely

ministerial duty upon the District, the Commissioners had no discretion in determining whether the

District would pay the relocation expenses, and they failed to perform the ministerial task of

authorizing payment. Under such circumstances their conduct in requesting the City to issue notices

of relocation constituted ultra vires acts in contravention of their ministerial duty to cause the District

to bear the costs of relocating AT&T’s facilities. Therefore, the trial court had jurisdiction over

AT&T’s claims against the Commissioners and the trial court erred by granting the Commissioners’

plea to the jurisdiction.

Further, AT&T is entitled to declaratory relief that payment of its relocation expenses by the

District is required by § 49.223. Although that declaration essentially is a requirement for

prospective relief against the District, the District’s immunity does not shield it from such relief. See

Heinrich, 284 S.W.3d at 368-69.

2. Marcotte’s No-Evidence Motion for Summary Judgment

Where a no-evidence motion for summary judgement is granted, as Marcotte’s was, a

reviewing court will sustain the summary judgment if “(a) there is a complete absence of evidence

of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only

evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than

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a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

In his summary judgment motion, Marcotte contended that governmental immunity insulates

him from this suit because, as AT&T’s pleadings alleged, he was acting in accordance with a City

of Houston Ordinance when he sent the relocation notice and threatened to remove the facilities and

assess the costs against AT&T. As stated earlier, the ultra vires exception to immunity only applies

where a government actor fails to perform a ministerial task or acts without authority of law.

Heinrich, 284 S.W.3d at 370. Neither of these instances are present here. It is undisputed that

Marcotte’s actions conformed with the Houston Ordinance. The undisputed facts establish that

Marcotte acted with authority of law and that the ultra vires exception is inapplicable as to him.

Accordingly, we affirm the trial court’s grant of no-evidence summary judgment as to Marcotte.

III. Disposition

We reverse the court of appeals’ judgment to the extent it affirms the trial court’s judgment

denying AT&T’s motion for summary judgment, grants summary judgment in favor of the City, and

grants the Commissioners’ pleas to the jurisdiction. We affirm that part of the judgment in favor of

Marcotte.

We remand the case to the trial court for further proceedings consistent with this opinion.

________________________________________
Phil Johnson
Justice

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OPINION DELIVERED: March 20, 2015

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2831471. Public record. Not legal advice.