southwestern-bell-telephone-lp-dba-att-texas-v-ed-emmett-el-franco ( 2015 )

IN THE SUPREME COURT OF TEXAS
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NO . 13-0584
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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
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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).
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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
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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
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§ 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
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“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.
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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.
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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
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§ 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:
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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).
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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
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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
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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
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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
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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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