IN THE SUPREME COURT OF TEXAS

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NO. 11-0079

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ONCOR ELECTRIC DELIVERY COMPANY LLC, PETITIONER,

v.

DALLAS AREA RAPID TRANSIT AND FORT WORTH

TRANSPORTATION AUTHORITY, RESPONDENTS

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

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Argued January 11, 2012

JUSTICE HECHT delivered the opinion of the Court.

An electric utilitysued two regional public transportation authorities,which are governmental

entities, to condemn an easement across their land for use in constructing a transmission line

approved by the Public Utility Commission (“PUC”). A divided court of appeals upheld the

authorities’ assertion of governmental immunityand dismissed the case. While the utility’s petition 1

for review was pending in this Court, the Legislature enacted House Bill 971, which extends 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 [PUC] has approved the construction of [a transmission]

331 S.W.3d 91 (Tex. App.–Dallas 2010).

1
line.” The utility asks that we vacate the court of appeals’ judgment and remand the case to the trial 2

court to consider the effect of the new statute. The authorities object that the statute is inapplicable. 

We agree with the utility.

I

Oncor Electric Delivery Company LLC owns and operates the largest electric distribution

and transmission system in Texas, delivering power over some 117,000 miles of lines to about three

million homes and businesses. Oncor applied to the PUC for approval to construct a new

transmission line serving Dallas County. The PUC considered several different routes, weighing 3

the costs to consumers and the impact on local communities and property owners. After lengthy

proceedings, it approved one that crossed over a public commuter rail line between Dallas and Fort

Worth that is jointly owned and operated by Dallas Area Rapid Transit (“DART”) and the Fort

Worth Transportation Authority(collectively, “theAuthorities”), both regional public transportation

authorities under Texas law. All interested parties were notified of Oncor’s application, and many 4 5

landowners participated in the PUC proceedings. The Authorities did not.

Act of May 27, 2011, 82nd Leg., R.S., ch. 949, § 1, 2011 Tex. Gen. Laws 2400, 2400 [hereinafter “House Bill

2

971”], codified as TEX. UTIL. CODE § 37.053(d).

See TEX. UTIL. CODE §§ 37.051-37.061 (detailing the requirements for applying for a certificate of

3

convenience and necessity from the PUC).

A regional transportation authority “is a public political entity and corporate body [that] has perpetual

4

succession[] and . . . exercises public and essential governmental functions.” TEX. TRANSP. CODE § 452.052(a).

See TEX. UTIL. CODE § 37.054 (“(a) When an application for a certificate is filed, the commission shall: (1)

5

give notice of the application to interested parties and to the office; and (2) if requested: (A) set a time and place for a

hearing; and (B) give notice of the hearing. (b) A person or electric cooperative interested in the application may

intervene at the hearing.”).

2
Oncor attempted to negotiate with the Authorities for an aerial easement and right-of-way

over approximately0.37 acres of their rail line. Although Oncor and its predecessor had successfully

negotiated similar rights-of-way with DART hundreds of times before, this time the parties could

not reach an agreement, and Oncorsued to condemn the easement. Oncorinvoked Section 181.004 6

of the Utilities Code, which states:

A gas or electric corporation has the right and power to enter on, condemn,

and appropriate the land, right-of-way, easement, or other property of any person or

corporation.7

The Authorities are governmental entities and pleaded immunity from suit. The trial court denied 8

their plea and refused to dismiss the case, and the Authorities appealed. A divided court of appeals 9

held that governmental entities are immune from suits for condemnation, that Section 181.004 does 10

The Authorities tell us that they “do not seek to change Oncor’s route . . . as established by the [PUC]” and

6

that “DART and Oncor (or its predecessor, TXU Electric Company) have entered into over 800 agreements for Oncor’s

lines to cross DART property without the use of eminent domain.” Respondents’ Brief on the Merits 2.

TEX. UTIL.CODE § 181.004; see id. § 181.001 (defining “corporation” and “electric corporation” for purposes

7

of chapter 181); id. § 181.001(2) (“‘Electric corporation’ means an electric current and power corporation.”).

TEX. TRANSP. CODE § 452.052(c) (“An authority is a governmental unit under [the Texas Tort Claims Act],

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and the operations of the authority are not proprietary functions for any purpose including the application of [the Act].”);

Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 661 (Tex. 2008) (“Dallas

Area Rapid Transit is a regional public transportation authority that performs only governmental functions and is immune

from suit under Texas law.” (footnotes omitted)).

TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (authorizing an interlocutory appeal from an order that “grants

9

or denies a plea to the jurisdiction by a governmental unit as that term is defined in [the Texas Tort Claims Act]”).

331 S.W.3d 91, 97-100 (Tex. App.–Dallas 2010).

10

3
not waive governmental immunity, and that the PUC’s authorityto approve transmission lines does 11

not preempt immunity. Accordingly, the court dismissed the action. 12

Oncor petitioned this Court for review, and we requested briefing on the merits. But before

Oncor filed its brief, the Legislature enacted House Bill 971, adding Section 37.053(d) of the

Utilities Code, which provides in part:

For transmission facilities ordered or approved by the [PUC] . . . , the rights

extended to an electric corporation under Section 181.004 include all public land,

except land owned by the state, on which the commission has approved the

construction of the line.13

In its brief, Oncor argued that the court of appeals’ opinion and judgment should be vacated and the

case remanded to the trial court to consider the effect of the new statute. Oncor reserved its

argument for reversal of the court of appeals’ opinion. The Authorities responded that Section

37.053(d) cannot affect this case for three reasons: (1)the statute does not clearlyand unambiguously

waive immunity anymore than does Section 181.004; (2) the statute should be applied prospectively

only; and (3) the Authorities, as political subdivisions of the State, have the same immunity as the

State and therefore fall within the statutory exception for State-owned land. We granted Oncor’s

petition. We address each of the Authorities’ arguments in turn. We assume, without deciding,

14

that governmental entities are immune from condemnation suits.

Id. at 100-106.

11

Id. at 106-107.

12

TEX. UTIL. CODE § 37.053(d).

13

55 Tex. Sup. Ct. J. 2 (Sept. 30, 2011).

14

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II

We have long held, and the Legislature has more recently come to expressly require of 15

itself, that a waiver of governmental immunity must be clear and unambiguous. Were we to apply 16

that standard to Section 181.004, our analysis would proceed along these lines. Section 181.004

confers on gas and electric utilities a power of eminent domain over the “property of any person or

corporation.” Since the adoption of the Code Construction Act in 1967, the Legislature has

instructed that in construing its codes, the word “person” includes the “government or governmental

subdivision or agency” “unless the statute or context . . . requires a different definition”. But in 17

2001, the Legislature added that “the use of ‘person’ . . . to include governmental entities[] does not

indicate legislative intent to waive sovereign immunity unless the context of the statute indicates no

other reasonable construction.” These directives do not establish whether Section 181.004 waives 18

immunity and shed no light at all on what the Legislature intended by its use of the word “person”

in general statutes — not codes — enacted in 1911, when the predecessor to Section 181.004 was

Welch v. State, 148 S.W.2d 876, 879 (Tex. Civ. App.–Dallas 1941, writ ref’d) (“Although the Legislature

15

is authorized to waive the State’s immunity from such liability, its intention to do so should appear by clear and

unambiguous language.”).

 TEX. GOV’T CODE § 311.034 (“In order to preserve the legislature’s interest in managing state fiscal matters

16

through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver

is effected by clear and unambiguous language.”).

Act of May 24, 1967, 60th Leg., R.S., ch. 455. § 1, 1967 Tex. Gen. Laws 1036, 1036, codified formerly as

17

TEX. REV. CIV. STAT. ANN. art. 5429b-2 and now as TEX. GOV’T CODE § 311.005(2); see also TEX. UTIL. CODE § 1.002

(providing that the Code Construction Act “applies to the construction of each provision in [the Utilities Code] except

as otherwise expressly provided by [the Utilities Code]”).

Act of May 26, 2001, 77th Leg., R.S., ch. 1158, § 8, 2001 Tex. Gen. Laws 2570, 2572, codified as TEX.

18

GOV’T CODE § 311.034.

5
first enacted. The court of appeals was not persuaded by Oncor’s arguments that a utility’s power 19

to condemn public lands was recognized in early case law. And while the Authorities are 20

“corporate bod[ies]”, one maycertainlyquestion whetherthat statutorydescription of their capacity 21

brings them within the entities whose property can be condemned by a gas or electric corporation. 

In short, whether Section 181.004 clearly and unambiguously waives a government landowner’s

immunity is a difficult question.22

And it is one we need not answer here because our focus instead is on Section 37.053(d). 

That statute provides that “the rights extended to an electric corporation under Section 181.004” —

which by the latter’s terms are the rights “to enter on, condemn, and appropriate . . . land, [a] rightof-way, [an] easement, or other property” — “include” certain “public land” in certain

circumstances. Section 37.053(d) applies only to electric corporations, not gas corporations also

covered by Section 181.004. The rights conferred do not extend to all public land but only to public

land not owned by the State. And those rights exist onlywhen construction of transmission facilities

on the land is PUC-approved.

Had Section 37.053(d) gone on to state “immunity is waived”, its effect would be perfectly

clear. But as we have observed, not all statutes are so explicit, and “[t]he rule requiring a waiver of

Act approved March 25, 1911, 32d Leg., R.S., ch. 111, § 4, 1911 Tex. Gen. Laws 228, 229.

19

331 S.W.3d 91, 100-106 (Tex. App.–Dallas 2010).

20

TEX. TRANSP. CODE § 452.052(a).

21

 We note that condemnation of public property generally involves a number of other considerations, such as

22

the nature of the condemnor, the scope of its authority, and an assessment of competing public uses. See generally 1A

JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN § 2.17 (3d ed. 2011).

6
governmental immunity to be clear and unambiguous cannot be applied so rigidly that the almost

certain intent of the Legislature is disregarded.” We think Section 37.053(d) is clear enough. A 23

general provision that electric utilities can condemn public land might be construed merely to

recognize a power that cannot be exercised without a specific waiver of immunity, just as a statute

authorizing a governmental entity to “be sued” does not waive immunity for all suits. But Section 24

37.053(d) is very specific: only electric corporations, only some land, and only with PUC approval. 

A statute creating specific, restricted “rights”, as Section 37.053(d) does, cannot reasonably be read

to tacitly condition their exercise on a separate waiver of immunity. The obvious purpose of Section

37.053(d) — indeed, its only apparent purpose — is to provide for rights that can actually be

exercised. “If a statute leaves no reasonable doubt of its purpose, we will not require perfect clarity,

even in determining whether governmental immunity has been waived.”25

In applying the clear-and-unambiguous standard, “we must look at whether a statute makes

any sense if immunity is not waived.” We think Section 37.053(d) does not. Accordingly, we 26

conclude that it waives governmental immunity.

City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995).

23

Tooke v. City of Mexia, 197 S.W.3d 325, 342 (Tex. 2006).

24

Barfield, 898 S.W.2d at 292.

25

Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 6 (Tex. 2000).

26

7
III

The Authorities argue that the Legislature did not intend for Section 37.053(d) to apply in

a case filed before it took effect and that such application would violate the constitutional prohibition

against retroactive laws.27

The Legislature has directed that in construing its codes, “[a] statute is presumed to be

prospective in its operation unless expresslymade retrospective.” House Bill 971 enacted Section 28

37.053(d) and two other provisions. Of the other two, the Bill expressly made one applicable only

in future PUC proceedings and the other in pending and future PUC proceedings. Otherwise, 29

Section 5 provided that the Bill should take effect immediately if it received a two-thirds vote in both

houses of the Legislature, which it did. Thus, Section 37.053(d) was expressly made effective 30

immediately in all proceedings.

Applying the statute in this proceeding does not violate the Constitution. “The prohibition

against retroactive application of laws does not apply to procedural, remedial, or jurisdictional

statutes, because such statutes typically do not affect a vested right.” Immunity from suit is a

31

matter of jurisdiction. Furthermore, “changes in the law that . . . have little impact on prior rights[]

TEX. CONST. art. I, § 16 (“No . . . retroactive law . . . shall be made.”).

27

TEX. GOV’T CODE § 311.022.

28

House Bill 971 §§ 2(b) & 4.

29

Id. § 5.

30

Univ. of Tex. Sw. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 548 (Tex. 2010).

31

8
are usually not unconstitutionally retroactive.” “A governmental entity cannot complain of a

32

retroactive waiver of immunity, since all governmental immunity derives from the State, and a

governmental entity acquires no vested rights against the State.”33

Accordingly, we conclude that Section 37.053(d) applies in this case.

IV

Finally, the Authorities argue that their property falls within Section 37.053(d)’s exception

for “land owned by the state”. They concede, as they must, that they are not the State, but they 34

argue that because their immunity is derived from the State, they should share the exception. But

the exception is based on ownership, not the source of immunity, and plainly, the State does not own

the Authorities’ rail line. Moreover, if the exception applied to the property of every governmental

entity with State-derived immunity, it would apply to all public land and would swallow the rest of

the provision, denying it effect. We must presume that the Legislature intends its enactments to be

effective. Consequently, we cannot construe the exception to include the Authorities’ property.

35

* * *

Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 146 (Tex. 2010).

32

Tooke v. City of Mexia, 197 S.W.3d 325, 345 (Tex. 2006).

33

Cf. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939-940 (Tex. 1993).

34

TEX. GOV’T CODE § 311.021(2) (providing that, when a statute is enacted, it is presumed that “the entire

35

statute is intended to be effective”).

9
For these reasons, we vacate the opinion and judgment of the court of appeals and remand

the case to the trial court for further proceedings.36

Nathan L. Hecht

OPINION DELIVERED: June 22, 2012

See TEX. R. APP. P. 60.2(f).

36

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