By Janet Elliott
Staff Writer for The Texas Lawbook
AUSTIN (June 22) – The Texas Supreme Court cited a 2011 state law extending the power of electric utilities to condemn land to rule in favor of Oncor Electric Delivery Co.’s request for an aerial easement over the Trinity Railway Express commuter line.
The case grew out of a dispute over how much Oncor should pay to run lines over tracks owned by the Dallas Area Rapid Transit and Fort Worth Transportation Authority, also called The T. Although the utility had successfully negotiated similar rights-of-way with DART hundreds of times before, in this instance the parties could not reach agreement.
After Oncor filed a condemnation suit, the trial court appointed special commissioners to determine how much Oncor should pay to cross the lines. DART and The T appealed the commissioners’ award to the county court-at-law and asked that Oncor’s case be dismissed based on governmental immunity.
After failing to get the lawsuit dismissed, the transportation authorities appealed. A divided 5th Court of Appeals upheld the governmental immunity assertions of the commuter rail authorities.
While Oncor was appealing that decision to the Supreme Court, the Legislature enacted House Bill 971, extending an electric corporation’s power of eminent domain to include the acquisition of “all public land, except land owned by the state” on which the Public Utility Commission has approved the construction of a transmission line.
In a unanimous decision by Justice Nathan Hecht, the court held that the transportation authorities did not have immunity from suit and that the new law is not unconstitutionally retroactive. A governmental entity cannot complain of a retroactive immunity waiver since all governmental immunity derives from the state, the court said.
“The obvious purpose of (the new law) – indeed, its only apparent purpose – is to provide for rights that can actually be exercised,” Hecht said.
The dispute now returns to the trial court for determination of how much Oncor should pay for the easement.
James Ho, a Gibson, Dunn & Crutcher partner, argued for Oncor. Even without HB 971, Ho told the court, a century of law supports the right of electric utilities to condemn public land.
Joycell Hollins, senior assistant legal counsel at DART, argued for the transportation authorities.
The case was closely watched by utilities and pipeline companies as well as private property rights advocates.
Hiram Sasser of the Plano-based Liberty Institute argued as amicus curiae in support of Oncor. He said the court of appeals ruling is “Texas’ version of Kelo,” referring to the 2005 U.S. Supreme Court case that allowed a Connecticut woman’s home to be condemned for municipal economic development. Exempting public property from condemnation leads to greater taking of private property, Sasser said.
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