Hidalgo County Water Improvement District No. 3 v. Hidalgo County Irrigation District No. 1

Supreme Court of Texas

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No. 21-0507

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Hidalgo County Water Improvement District No. 3,

Petitioner,

v.

Hidalgo County Irrigation District No. 1,

Respondent

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On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

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Argued January 12, 2023

JUSTICE LEHRMANN delivered the opinion of the Court.

In this eminent-domain proceeding brought by one political

subdivision against another, the principal issue is whether

governmental immunity bars such a proceeding. The court of appeals

held that the condemnee entity is immune from suit and affirmed the

trial court’s order granting the entity’s plea to the jurisdiction. Because

we hold that governmental immunity does not apply in this context, we

reverse.

I. Background

The facts of this case are undisputed. Petitioner Hidalgo County

Water Improvement District No. 3 (the Improvement District) and

Respondent Hidalgo County Irrigation District No. 1 (the Irrigation

District) both provide water and irrigation services in Hidalgo County.

The Irrigation District operates an open irrigation outtake canal in

McAllen through which most of the drinking water supplied to the City

of Edinburg flows.

The Improvement District operates an underground irrigation

pipeline along the right-of-way for Bicentennial Boulevard in McAllen.

The Improvement District entered into an agreement with the City of

McAllen to extend the irrigation pipeline in conjunction with the City’s

northward extension of the boulevard. The route of the proposed

pipeline extension crosses under the Irrigation District’s canal.

The Improvement District offered to purchase a subsurface

easement from the Irrigation District, which rejected the offer. After

negotiations failed, the Improvement District filed this condemnation

action. See TEX. WATER CODE § 49.222(a) (granting water districts

condemnation authority). The trial court appointed special

commissioners, who set a hearing to assess the Irrigation District’s

damages caused by the condemnation. See TEX. PROP. CODE

§§ 21.014–.015 (requiring the judge in a condemnation proceeding to

appoint special commissioners to assess the condemnee’s damages). The

Irrigation District did not attend the hearing. The commissioners

awarded the Irrigation District $1,900 in damages.

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The Irrigation District timely objected to the commissioners’

findings, see id. § 21.018(a), arguing that the Improvement District

could not establish the paramount public importance of its pipeline.

Under the paramount-public-importance doctrine, a condemnation

authority may not condemn land already dedicated to a public use if

doing so would effectively destroy its existing use, unless the condemnor

can show that the intended use is of “paramount public importance” and

cannot be achieved by any other means. 1A JULIUS L. SACKMAN,

NICHOLS ON EMINENT DOMAIN § 2.17 (3d ed. 2023). The Irrigation

District contended that the Improvement District’s proposed easement

would practically destroy the Irrigation District’s canal and the

proposed pipeline extension was not of paramount importance when

compared to the existing canal.

Before the trial court ruled on the objection, the Irrigation District

filed a plea to the jurisdiction. In its plea, the Irrigation District argued

that it had governmental immunity from the condemnation suit and

that the Legislature had not waived that immunity. The trial court

agreed, granted the plea, and dismissed the suit.

The court of appeals affirmed. 627 S.W.3d 529, 540 (Tex. App.—

Corpus Christi–Edinburg 2021). The court reasoned that the

Improvement District’s condemnation proceeding raises separation-of-

powers issues by asking the judiciary to interfere with the Irrigation

District’s discretion regarding the disposition of its property. Id. at 537.

Therefore, the court held that governmental immunity bars the suit,

even though it poses no grave danger to the public fisc. Id. Having

determined that governmental immunity is implicated, the court of

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appeals then rejected the Improvement District’s contention that

Section 49.222 of the Water Code waives the Irrigation District’s

immunity from a condemnation suit. Id. at 540.

The Improvement District petitioned for review. Before this

Court, the Improvement District argues that governmental immunity

does not apply in the condemnation context for two reasons. First, the

Improvement District contends that the modern justifications for

governmental immunity are not served by applying the doctrine to

condemnation suits. Second, it asserts that separating the power to

condemn, which the Improvement District undoubtedly possesses, from

the power to bring an action to condemn makes little practical sense.

So, rather than address condemnation disputes involving governmental-

entity condemnees under an immunity-and-waiver framework, the

Improvement District argues that we should do so by applying the

paramount-public-importance doctrine.

Alternatively, the Improvement District argues that, even if

governmental immunity does apply in the condemnation context,

Section 49.222 of the Water Code clearly and unambiguously waives

that immunity by empowering the Improvement District to condemn

any land inside or outside its boundaries for a variety of purposes. The

Improvement District argues that this statutory grant of condemnation

authority is broad enough to necessarily include a waiver of a

governmental-entity condemnee’s immunity.

The Irrigation District responds that immunity should apply in

this context to prevent parties from using the judiciary to alter

government policy. The Irrigation District disputes the Improvement

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District’s assertion that the paramount-public-importance doctrine

constitutes the primary judicial mechanism for resolving condemnation

disputes involving governmental-entity condemnees, arguing that the

doctrine comes into play only after a court determines that the

Legislature has waived the condemnee’s immunity. Finally, the

Irrigation District argues that the court of appeals correctly determined

that Section 49.222 does not clearly and unambiguously waive the

Irrigation District’s immunity.

II. Discussion

Sovereign immunity generally bars lawsuits against the State

absent legislative consent to be sued. State v. Lueck, 290 S.W.3d 876,

880 (Tex. 2009). Governmental immunity provides similar protection to

the State’s political subdivisions, including the water districts involved

in this case. See Reata Constr. Co. v. City of Dallas, 197 S.W.3d 371, 374

(Tex. 2006). One component of such immunity—immunity from suit—

implicates a court’s subject matter jurisdiction and is thus properly

raised in a plea to the jurisdiction. 1 Sampson v. Univ. of Tex. at Austin,

500 S.W.3d 380, 384 (Tex. 2016); see also Rattray v. City of Brownsville,

662 S.W.3d 860, 868 (Tex. 2023) (reiterating that, though “immunity

does not equate to subject matter jurisdiction,” it nevertheless

“implicates” jurisdiction “such that an opinion in the face of a valid

1Immunity from liability—another component of sovereign immunity—

“protects the state from judgment even if the Legislature has expressly

consented to the suit.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.

1999). Unlike immunity from suit, immunity from liability is an affirmative

defense that is waived if not pleaded. Id.

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assertion of immunity may correctly be called ‘advisory’” (citations

omitted)).

A. Recognized Limits on Sovereign Immunity’s Scope

When reviewing a dispute about whether a claim against a

governmental entity is barred by immunity, our focus typically is not on

whether the entity is immune in the first instance—it usually is—but

whether the Legislature has chosen to waive that immunity. See Lueck,

290 S.W.3d at 880. Today we are presented with the rare antecedent

question of whether immunity applies in a certain type of proceeding,

specifically, a condemnation proceeding.

Because sovereign immunity, and by extension governmental

immunity, is first and foremost a common-law doctrine, we have

recognized that the judiciary is responsible for defining the doctrine’s

boundaries and determining whether it applies in the first instance.

City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457 (Tex.

2020). That obligation—to evaluate whether the doctrine should be

modified or abrogated under particular circumstances—remains

squarely within the judiciary’s province, while the Legislature

determines the circumstances under which immunity is waived. City of

Dallas v. Albert, 354 S.W.3d 368, 373 (Tex. 2011) (“[Governmental

immunity’s] boundaries are established by the judiciary, but we have

consistently held that waivers of it are the prerogative of the

Legislature.”); see also Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583,

592 (Tex. 2001) (Hecht, J., concurring) (“The common-law rule of

immunity in Texas was the judiciary’s to recognize, and it is ours to

disregard.” (internal citations omitted)).

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In determining whether sovereign immunity applies in the first

instance, we consider the nature and purposes of the doctrine as guides.

City of Conroe, 602 S.W.3d at 458. As we have reiterated on numerous

occasions, the justifications for this longstanding common-law rule have

evolved over the centuries. Our modern jurisprudence justifies the

doctrine as a means of (1) protecting the public fisc by shielding tax

resources from being diverted to pay litigation costs and money

judgments and (2) preserving the separation of powers and the

Legislature’s prerogative to apportion tax dollars to their intended

purposes. See, e.g., Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d

117, 121 (Tex. 2015).

With those purposes in mind, this Court has recognized limits on

the doctrine’s reach. For example, in Reata, we reiterated that “when

an affirmative claim for relief is filed by a governmental

entity, . . . immunity from suit no longer completely exists” for that

entity. 197 S.W.3d at 376. Specifically, when a governmental entity

files suit or intervenes and seeks monetary relief, it is no longer immune

from suit for “claims against it which are germane to, connected with

and properly defensive to” the governmental entity’s own claims, at least

to the extent that the relief sought does not exceed the amount necessary

to offset the entity’s recovery. Id. at 377. In such circumstances, we

explained, “we see no ill befalling the governmental entity or hampering

of its governmental functions.” Id. at 376–77.

It is also well settled that immunity does not bar ultra vires suits

against state officials. City of El Paso v. Heinrich, 284 S.W.3d 366, 372

(Tex. 2009). That is, sovereign immunity does not prohibit a suit

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alleging that a state official has acted without legal or statutory

authority and seeking only prospective relief requiring the official’s

compliance with the law, even if the requested declaration would compel

the payment of public funds. Id. We have reasoned that such suits “do

not seek to alter government policy but rather to enforce existing policy.”

Id.

Finally, we recently held that governmental immunity does not

bar a suit under the Expedited Declaratory Judgment Act (EDJA), City

of Conroe, 602 S.W.3d at 459, which allows municipal bond issuers to

bring an expedited declaratory-judgment action in rem to confirm the

validity of a proposed public-securities issuance, see TEX. GOV’T CODE

§ 1205.021. The purpose of this expedited procedure is to “stop ‘the age

old practice allowing one disgruntled taxpayer to stop the entire bond

issue by simply filing suit.’” Buckholts Indep. Sch. Dist. v. Glaser, 632

S.W.2d 146, 149 (Tex. 1982) (construing the EDJA’s predecessor

statute). We noted in City of Conroe that in rem jurisdiction is

dependent on the court’s control over the defendant res, and the effect

of an in rem judgment is limited to the property that supports

jurisdiction. 602 S.W.3d at 458. These distinctive characteristics of

in rem jurisdiction proved relevant to whether immunity applied

because an EDJA suit, by its nature, does not impose personal liability

and thus requires no payment to satisfy a resulting judgment. Id.

Consequently, we noted that an EDJA suit “do[es] not subject

governments to the ‘costs and consequences’ of improvident government

actions” because the entities the Act intends to protect are governmental

entities themselves. Id.

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B. Historical Background of Condemnation Suits

This case asks how sovereign immunity interacts with a second

power inherent to the state’s status as a sovereign: eminent domain. See

TEX. CONST. art. I, § 1. Like sovereign immunity, the sovereign’s power

to condemn property for public use is both ancient and foundational to

the nature of sovereignty itself. Tex. Highway Dep’t v. Weber, 219

S.W.2d 70, 72 (Tex. 1949) (describing eminent domain as “a right

inherent in organized society itself”); see also PUBLIUS CORNELIUS

TACITUS, ANNALS OF TACITUS bk. I, at 75 (Clifford H. Moore trans.,

Harvard Univ. Press 2003) (1925) (discussing Emperor Tiberius’s

payment of just compensation to a Roman Senator whose house was

damaged by the construction of a public road and aqueduct).

The Texas Legislature has long imbued some condemnors with

the power to condemn public land for certain purposes. See, e.g., Humble

Pipe Line Co. v. State, 2 S.W.2d 1018, 1019–23 (Tex. App.—Austin 1928,

writ ref’d) (noting that the Legislature conferred the right of eminent

domain on pipeline companies in 1919, including “the right to lay [their]

pipe lines across and under any public lands belonging to the state”);

Imperial Irrigation Co. v. Jayne, 138 S.W. 575, 582 (Tex. 1911) (holding

that the Irrigation Act of 1895 “provide[d] for the acquisition of dam and

reservoir sites on the public school lands as well as on all other lands,

when necessary, to the creation of irrigation projects”). Condemnation

proceedings instituted under these legislative grants of authority

naturally raise both sovereign-immunity and eminent-domain

considerations. Accordingly, understanding how courts have

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historically confronted cases jointly raising these two foundational

issues is particularly relevant to how we should handle them today.

To that end, we have long resolved issues arising from the

condemnation of land already dedicated to a public use, including

publicly owned land, by applying the paramount-public-importance

doctrine. See Sabine & E.T. Ry. Co. v. Gulf & Interstate Ry. Co., 46 S.W.

784, 786 (Tex. 1898); SACKMAN, supra, § 2.17 (describing the doctrine as

the near-unanimous Anglo–American rule). As noted, under this

doctrine, a condemnee may prevent a condemnation of property already

devoted to public use if (1) the condemnee first establishes that the

condemnation “would practically destroy the use to which [the property]

has been devoted,” Sabine, 46 S.W. at 786, and (2) the condemnor then

fails to show that “the necessity be so great as to make the new

enterprise of paramount importance to the public, and it cannot be

practically accomplished in any other way.” Id.

We have repeatedly and consistently applied this doctrine to

condemnation suits against political subdivisions. See, e.g., Canyon

Reg’l Water Auth. v. Guadalupe–Blanco River Auth., 258 S.W.3d 613,

616–17 (Tex. 2008) (suit by water authority to condemn an easement for

the construction of a second water intake and pipeline on a lake owned

by the river authority); Austin Indep. Sch. Dist. v. Sierra Club, 495

S.W.2d 878, 882 (Tex. 1973) (suit by nonprofit organization challenging

a school district’s condemnation of city park land); Harris Cnty.

Drainage Dist. No. 12 v. City of Houston, 35 S.W.2d 118, 122 (Tex.

Comm’n App. 1931, holding approved) (noting that the city would have

the right to exercise eminent-domain authority with respect to property

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owned by the drainage district, subject to the paramount-public-

importance doctrine); Fort Worth Improvement Dist. No. 1 v. City of Fort

Worth, 158 S.W. 164, 170 (Tex. 1913) (affirming injunction preventing

an improvement district from maintaining levees that threatened to

destroy municipal property, based in part on application of the

paramount-public-importance doctrine). Despite nearly a century of

precedent discussing this doctrine, neither the parties nor this Court

raised the specter of governmental immunity in those cases. Given that

immunity from suit is jurisdictional, the absence of any discussion of

sovereign immunity in these cases is particularly striking. “Courts are

empowered to note potential jurisdictional defects sua sponte,” and by

doing so, a court “discharges its duty to ensure that the court itself is

functioning in an authorized and properly judicial capacity.” Rattray,

662 S.W.3d at 867–68; cf. Kinnear v. Tex. Comm’n on Hum. Rights ex

rel. Hale, 14 S.W.3d 299, 300 (Tex. 2000) (holding that the court of

appeals erred in raising the issue of immunity from liability sua sponte

because, unlike immunity from suit, immunity from liability is waived

if not pleaded).

Relatedly, the notion that governmental immunity may even

apply in condemnation proceedings has arisen quite recently. The

parties point to no Texas case law before 2010, and we have found none,

in which the appellate court squarely addressed a governmental entity’s

argument that it enjoyed immunity from a condemnation suit. 2 See

2 In Burlington Northern & Santa Fe Railway Co. v. City of Houston, a

railroad attempted to condemn an easement to build a rail line through city

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Dall. Area Rapid Transit v. Oncor Elec. Delivery Co., 331 S.W.3d 91, 107

(Tex. App.—Dallas 2010) (holding that regional transportation

authorities’ governmental immunity barred an electric utility’s eminent-

domain action), vacated on other grounds, 369 S.W.3d 845 (Tex. 2012).

In vacating the court of appeals’ judgment in Oncor, we assumed

without deciding that immunity applied and held that, if immunity

existed, it had been waived. Oncor Elec. Delivery Co. v. Dall. Area Rapid

Transit, 369 S.W.3d 845, 849 (Tex. 2012); see also In re Lazy W Dist.

No. 1, 493 S.W.3d 538, 544 (Tex. 2016) (“We have never decided whether

a governmental entity is immune from suit to condemn its property, and

we need not do so today.” (internal citation omitted)).

C. Analysis

With this historical and legal background in mind, we turn to the

issue presented: does governmental immunity bar the Improvement

District’s condemnation suit? Considering the purposes governmental

immunity serves, its nature, and the development of our immunity and

eminent-domain precedent, we hold that the Irrigation District is not

immune from this suit.

First, “an important purpose” of immunity is “to shield the public

from the costs and consequences of improvident actions of their

governments.” Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006).

Condemnation proceedings do not challenge improvident government

property, and the court of appeals summarily noted that cities are immune

from suit absent waiver but held that the city’s immunity was waived by

statute. 171 S.W.3d 240, 245–46 (Tex. App.—Houston [14th Dist.] 2005, no

pet.).

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action; indeed, they challenge no government action at all. Rather, they

involve the lawful exercise of authority to appropriate property for the

benefit of the public. See TEX. PROP. CODE § 21.012. Second, like EDJA

suits, condemnation proceedings against governmental entities are

in rem and do not threaten the public treasury except to the extent the

condemnee entity chooses to participate. See City of Conroe, 602 S.W.3d

at 458. And as the Improvement District points out, if the condemnation

proceeding is successful, the condemnee entity ultimately recovers

money. See KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175,

191 (Tex. 2019). The Irrigation District attempts to undermine this fact

by arguing that the condemnation could shift certain risks associated

with the pipeline’s construction and operation from the Improvement

District to the Irrigation District. But this argument relies solely on

speculative and indeterminate future harms. See Brown & Gay, 461

S.W.3d at 129 (rejecting speculation that declining to extend sovereign

immunity to a private contractor would make it difficult for the

government to engage talented private parties for fear of personal

liability because it failed to account for a private party’s ability to

manage any liability exposure through insurance coverage). Even if

those harms materialize, and the risk actually shifts from the

Improvement District to the Irrigation District, 3 the result—at least in

this case—is a reallocation of risk between two public entities. The net

effect on the public fisc is zero.

3Indeed, it is unclear whether any risk would shift in this context given

the availability of inverse-condemnation suits, as discussed below.

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Second, we disagree with the court of appeals’ conclusion that

abrogating immunity in this context “threaten[s] separation-of-powers

principles” that immunity protects. 627 S.W.3d at 537–38. To the

contrary, we conclude that recognizing the Irrigation District’s

immunity would implicate separation-of-powers concerns as much as, or

even more than, it mitigates them. The Irrigation District essentially

urges us to substitute the Legislature’s prerogative with the Irrigation

District’s. However, the Legislature created the Improvement District

and granted it eminent-domain authority to fulfill its public purpose.

Extending sovereign immunity into this area thus would provide a

political subdivision with the unilateral ability to undermine the

Legislature’s allocation of condemnation power to an entity to fulfill an

identified public need.

True, the condemnee entity is also addressing a public need.

However, the paramount-public-importance doctrine has long provided

an adequate framework for balancing the condemnor’s legislatively

granted condemnation authority with the condemnee’s ability to serve

its own public purpose. In applying the doctrine, the court defers to each

entity’s policy discretion by first considering whether allowing the

condemnation undermines the condemnee’s ability to fulfill that

purpose. See Sabine, 46 S.W. at 786. Only after the court determines

that the two purposes cannot coexist does the doctrine require an

inquiry into which interest should prevail under the circumstances of a

particular case. See id. The Irrigation District essentially asks us to

replace this framework with a rigid judicial declaration that the policy

decision of the condemnee public landowner should always prevail

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unless the Legislature expressly provides otherwise. We decline to do

so. Instead, we reaffirm this Court’s longstanding paramount-public-

importance precedent.

Third, it is well settled that a governmental entity may be sued

for inverse condemnation, by either a public or private landowner, for

taking the owner’s property without paying just compensation. Brazos

River Auth. v. City of Graham, 354 S.W.2d 99, 106 (Tex. 1961); State v.

Holland, 221 S.W.3d 639, 643 (Tex. 2007). If a governmental entity is

not immune from a takings claim on the “back end”—that is, after it has

taken property without compensation—it logically follows that the

entity may pursue a pre-taking eminent-domain action. The Legislature

has instituted a comprehensive scheme governing condemnation

proceedings precisely because a pre-taking adjudication and

compensation is preferable. A rule that encourages governmental

subdivisions to do the opposite, to bury the pipe now and sort out the

consequences later, is improvident. See PennEast Pipeline Co. v. New

Jersey, 141 S. Ct. 2244, 2260 (2021) (discussing how divorcing eminent-

domain power from the power to bring condemnation proceedings leaves

those exercising the former with only one constitutional option: “[t]ake

property now and require States to sue for compensation later”).

This Court’s precedent, which recognizes governmental

immunity’s limits in other contexts, also supports declining to extend

the doctrine to condemnation suits. Like an ultra vires claim, a

condemnation suit does not seek to infringe on the condemnee

governmental entity’s policy discretion. Rather, wholly immunizing the

condemnee would undermine the condemnation power the Legislature

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chose to grant to the condemnor to fulfill an identified public need. And

similar to the EDJA action in City of Conroe, condemnation proceedings

do not impose personal liability on the condemnee entity or subject the

public to the costs and consequences of improvident government action.

See 602 S.W.3d at 456.

The court of appeals found persuasive that governmental entities

are immune from a trespass-to-try-title action, which, like a

condemnation proceeding, is a “suit for land.” See State v. Lain, 349

S.W.2d 579, 582 (Tex. 1961). We do not, for two reasons.

First, unlike condemnation suits, sovereign immunity from

trespass-to-try-title actions serves the intended purpose of protecting

the public from the costs of improvident government action and

preventing litigants from controlling government action by imposing

liability. See id. at 581 (“One who takes possession of another’s land

without legal right is no less a trespasser because he is a state official or

employee . . . .”); see also 3 WILLIAM BLACKSTONE, COMMENTARIES

*254–55 (“[I]n the first place, whatever may be amiss in the conduct of

public affairs is not chargeable personally on the king; nor is he, but his

ministers, accountable for it to the people.”). By contrast, condemnation

authority is intended to benefit both governmental entities and the

public. See City of Conroe, 602 S.W.3d at 458 (noting that governmental

entities “are the very entities the EDJA protects”). And rather than

trying to control government action through litigation, the

condemnation authority is taking legislatively authorized action by

instituting a condemnation suit. See TEX. WATER CODE § 49.222.

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Second, “[w]hile suits to try the State’s title are barred by

immunity, in some instances a party may maintain a trespass to try title

action against governmental officials acting in their official capacities.”

Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 393 (Tex.

2011) (citing Lain, 349 S.W.2d at 581). Specifically, a person may obtain

relief through an ultra vires suit against a government official who,

acting in his official capacity, “possesses property without authority.”

Id. In that case, the person may compel the return of the property even

when the official claims that title or possession is on the government’s

behalf. See id. The governmental entity, however, remains free to

assert its own challenge to the plaintiff’s title or seek condemnation of

the property. Lain, 349 S.W.2d at 586. The fact that both condemnation

and trespass-to-try-title actions involve title to real property does not

mean that the immunity analysis is the same for both; the two actions

implicate title to real property for substantially different reasons. In a

trespass-to-try-title action, title itself is in dispute. In a condemnation

proceeding like this one, the issue is determining just compensation for

the condemned property. We find City of Conroe more persuasive in this

context.

Finally, we reiterate that the idea that governmental immunity

may even apply in eminent-domain proceedings is a relatively new

development. Despite a long history of condemnation suits being

pursued against governmental entities, immunity has only recently

been raised and considered as a jurisdictional bar in such proceedings.

The Irrigation District’s assumption that those entities have always

held this previously unasserted immunity rings hollow.

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III. Conclusion

We hold that sovereign immunity does not apply in eminent-

domain proceedings and that the Irrigation District is not immune from

the Improvement District’s condemnation suit. Accordingly, we reverse

the court of appeals’ judgment and remand the case to the trial court for

further proceedings.

Debra H. Lehrmann

Justice

OPINION DELIVERED: May 19, 2023

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