Affirmed and Opinion filed May 9, 2013.

In The

Fourteenth Court of Appeals

NO. 14-11-01115-CV

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

V.

ED EMMETT, EL FRANCO LEE, SYLVIA GARCIA, STEVE RADACK, AND 

JERRY EVERSOLE, AS MEMBERS OF THE HARRIS COUNTY 

COMMISSSIONERS’ COURT; MICHAEL MARCOTTE, AS DIRECTOR OF 

THE CITY OF HOUSTON DEPARTMENT OF PUBLIC WORKS AND 

ENGINEERING; AND THE CITY OF HOUSTON, Appellees

On Appeal from 189th District Court

Harris County, Texas

Trial Court Cause No. 2007-38986

O P I N I O N

Southwestern Bell Telephone, L.P., d/b/a AT&T Texas (“AT&T”) appeals from 

orders (1) granting a plea to the jurisdiction filed by County Judge Ed Emmett and 

Commissioners El Franco Lee, Sylvia Garcia, Steve Radack, and Jerry Eversole in their 

official capacities (collectively, the “County Commissioners”); (2) granting summary 

judgment in the alternative in favor of the County Commissioners; (3) granting summary 

judgment in favor of the City of Houston and Michael S. Marcotte, director of the City of 
2

Houston Department of Public Works and Engineering; and (4) denying AT&T’s motion 

for summary judgment. We affirm.

BACKGROUND

This appeal stems from a dispute over who must bear the cost of relocating 

AT&T’s telecommunications equipment located in a public right-of-way and attached to 

Forest Hill Street Bridge in Houston, which spans Brays Bayou near the Ship Channel. 

The dispute arises in connection with a plan to demolish the existing City-owned bridge 

and replace it with a longer, wider one as part of a project to widen Brays Bayou.

AT&T says the Flood Control District must bear this cost. The Flood Control 

District and the City say AT&T must bear it.

AT&T relies upon the following Water Code provision:

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, raising, lowering, rerouting, or change in 

grade of or alteration in construction of any road, bridge, highway, railroad, 

electric transmission line, telegraph, or telephone properties, facilities, or 

pipelines, all necessary relocations, raising, lowering, rerouting, or change 

in grade or alteration of construction shall be done at the sole expense of 

the district or the water supply corporation unless otherwise agreed to in 

writing.

Tex. Water Code Ann. § 49.223(a) (Vernon 2008). According to AT&T, the Flood 

Control District “ma[de] necessary” and must pay for the relocation of AT&T’s 

telecommunications equipment attached to the bridge as part of a larger channelwidening program called the “Brays Bayou Flood Damage Reduction Project” – “Project 

Brays” for short.

Planning for Project Brays has been conducted by the Flood Control District and 

United States Army Corps of Engineers. The plan contemplates that approximately 30 

City-owned bridges will be modified or demolished and rebuilt, including the Forest Hill 

Street Bridge. The Flood Control District is paying to demolish and reconstruct the 

bridges as part of Project Brays using contractors and consultants hired and paid for by 
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the district.

The Flood Control District and the City executed an Interlocal Agreement in 2004 

to address control of and responsibility for the City-owned bridges affected by Project 

Brays. Among other things, the Interlocal Agreement gives the City authority to review 

and approve bridge drawings and specifications; access bridge construction sites; and 

maintain and repair the new bridges upon completion. Section 8 of the Interlocal 

Agreement between the Flood Control District and the City states: “Where the City has 

the right to require a public utility company . . . to modify and/or replace its facilities at 

its own cost, the City shall designate the District as the city’s project manager, and upon 

written request . . . direct the public utility company . . . to modify and/or relocate its 

facilities . . . at no cost to the City or to the District.”

On February 8, 2007, the Flood Control District’s director sent a letter to the 

City’s director of the Department of Public Works and Engineering. This letter said 

replacement of the Forest Hill Street Bridge “will require the replacement of various 

utilities located on the existing bridge” and asked the City to direct AT&T to “modify or 

relocate” its utilities at AT&T’s expense.

On March 9, 2007, the City sent a letter to AT&T in which the City directed 

AT&T to relocate its facilities attached to the existing Forest Hill Street Bridge. AT&T 

responded on April 30, 2007; AT&T said it would relocate its facilities “provided that . . . 

the HCFCD agrees to reimburse AT&T Texas for 100% of the actual costs associated 

with this relocation.” The City replied on May 16, 2007, and stated: “The fact that this 

Public Works and Engineering project is being undertaken by the Harris County Flood 

Control District on behalf of the City does not relieve AT&T from the responsibility to 

relocate.” The City’s letter continued: “Should we not have an agreed schedule for 

relocation within 60 days of the Final Notice, the City may act in accordance with 

Section 40-397.”

The City’s invocation of Section 40-397 refers to Ordinance No. 2005-371, passed 

on April 6, 2005. This ordinance amends Chapter 40 of the Code of Ordinances, 
4

Houston, Texas, to add a new Article XVIII entitled: “Relocation of Privately-Owned 

Facilities.”

Section 40-393(a) of this article states: “Whenever 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.” It continues: “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.” In turn, section 40-397 sets forth various steps the City can take if 

an owner fails to relocate at the owner’s expense; these steps include the City’s ability to 

“[r]elocate the facility, or cause the facility to be relocated, on behalf of the owner and . . 

. recover the cost of the relocation from the owner.”

Following receipt of the City’s letter in May, AT&T filed suit on June 25, 2007. 

As discussed more fully below, AT&T subsequently amended its petition in an effort to 

address certain constraints on subject matter jurisdiction. AT&T’s third amended petition 

sought prospective declaratory and injunctive relief against the County Commissioners, 

Marcotte, and the City. AT&T sought the following declarations with respect to the 

Flood Control District, the City, and their respective agents and officials.

Section 49.223 requires the Flood Control District, and not AT&T, to bear 

costs associated with relocating AT&T’s facilities on the Forest Hill Street 

Bridge.

Section 49.223 controls over provisions of the City’s ordinance and its 

utility relocation program that impose facility relocation costs in connection 

with the Forest Hill Street Bridge on AT&T.

The Flood Control District and the City cannot require AT&T to bear the 

expense of removing or relocating AT&T’s facilities under the ordinance or 
5

the utility relocation program in connection with the Forest Hill Street 

Bridge.

The Flood Control District and the City cannot take physical possession of 

AT&T’s facilities on the Forest Hill Street Bridge or interfere with AT&T’s 

telecommunications service under the ordinance and the utility relocation 

program unless they comply with section 49.223.

The City cannot assess damages or recover relocation costs associated with 

the Forest Hill Street Bridge from AT&T, or declare that AT&T waived a 

damages claim, if AT&T fails to provide a satisfactory relocation schedule 

within the timeframe allotted by the City or fails to comply with the City’s 

relocation schedule.

AT&T also sought prospective injunctive relief to prevent the Flood Control District, the 

City, and their respective agents and officials from enforcing the ordinance or removing 

AT&T’s facilities on the Forest Hill Street Bridge.

The trial court resolved the case on motions in multiple orders. AT&T challenges 

the trial court’s orders in three issues on appeal, asserting that the trial court erred by (1) 

granting the County Commissioners’ plea to the jurisdiction, traditional motion for 

summary judgment, and no-evidence motion for summary judgment; (2) granting the 

City’s and Marcotte’s no-evidence motion for summary judgment and alternative 

traditional motion for summary judgment; and (3) denying AT&T’s amended motion for 

summary judgment.

STANDARDS OF REVIEW

Plea to the jurisdiction. A plea to the jurisdiction seeks dismissal because the trial 

court lacks subject matter jurisdiction to hear the case. Harris Cnty. v. Sykes, 136 S.W.3d 

635, 638 (Tex. 2004). A district court’s determination regarding subject matter 

jurisdiction is a question of law that we review de novo. Tex. Dept. of Parks & Wildlife v. 

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff must allege facts that 
6

affirmatively demonstrate the trial court’s subject matter jurisdiction over a case. Tex. 

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

“Whether a pleader has alleged facts that affirmatively demonstrate a trial court’s 

subject matter jurisdiction is a question of law reviewed de novo.” Miranda, 133 S.W.3d 

at 226. “Likewise, whether undisputed evidence of jurisdictional facts establishes a trial 

court’s jurisdiction is also a question of law.” Id. “We construe the pleadings liberally in 

favor of the plaintiff and look to the pleader’s intent.” Id. Courts do not decide the 

merits of the case on a plea to the jurisdiction. See id.

Traditional motion for summary judgment. A traditional summary judgment is 

appropriate under Texas Rule of Civil Procedure 166a(c) when a movant establishes that 

there is no genuine issue of material fact and the movant is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c). A trial court’s grant of traditional summary 

judgment is reviewed de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d 

656, 661 (Tex. 2005). An appellate court examines “the entire record in the light most 

favorable to the nonmovant, indulging every reasonable inference and resolving any 

doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

No-evidence motion for summary judgment. A no-evidence summary judgment 

under Rule 166a(i) is equivalent to a pretrial directed verdict, and the same legal 

sufficiency standard applies. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 

(Tex. 2003). Summary judgment is appropriate under Rule 166a(i) when there is a 

complete absence of evidence of a vital fact; the court is barred by rules of law or 

evidence from giving weight to the only evidence offered to prove a vital fact; the 

evidence offered to prove a vital fact is no more than a mere scintilla; or the evidence 

conclusively establishes the opposite of a vital fact. Id. at 751. Appellate review is de 

novo. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
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ANALYSIS

I. Subject Matter Jurisdiction

We address subject matter jurisdiction as a threshold matter to determine whether 

governmental immunity bars AT&T’s claims.

“Sovereign immunity protects the State from lawsuits for money damages.” Tex. 

Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). 

“Political subdivisions of the state, including cities, are entitled to such immunity –

referred to as governmental immunity – unless it has been waived.” Reata Constr. Corp. 

v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (citing Wichita Falls State Hosp. v. 

Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). Governmental immunity also extends to 

the Flood Control District as a political subdivision of the state. Harris Cnty. Flood 

Control Dist. v. Great Am. Ins. Co., 309 S.W.3d 614, 616 (Tex. App.—Houston [14th 

Dist.] 2011, pet. denied).

“Sovereign immunity encompasses immunity from suit, which bars a suit unless 

the state has consented, and immunity from liability, which protects the state from 

judgments even if it has consented to suit.” Reata Constr. Corp., 197 S.W.3d at 374. 

“We have held that sovereign immunity from suit deprives a trial court of subject-matter 

jurisdiction.” Id.; see also Miranda, 133 S.W.3d at 224.

AT&T initially sued only the Flood Control District and the City in 2007. AT&T 

amended its petition in 2009 to drop the Flood Control District as a defendant in light of 

City of El Paso v. Heinrich, 284 S.W.3d 366, 371-77 (Tex. 2009). In its third amended 

petition, AT&T added the County Commissioners1and Marcotte individually as 

 

1

 The Commissioners Court of Harris County serves as the Flood Control District’s governing 

body. Act of May 15, 1937, 45th Leg., R.S., ch. 360, 1937 Tex. Gen. Laws 714. Despite an overlap in 

geographical jurisdiction and leadership, “[t]he District is a conservation and reclamation district that is 

separate and distinct from Harris County.” Harris Cnty. Flood Control Dist. v. Great Am. Ins. Co., 359 

S.W.3d 736, 743 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); see also Harris Cnty. Flood 

Control Dist. v. Mann, 135 Tex. 239, 140 S.W.2d 1098, 1101 (1940).
8

defendants. AT&T continued to name the City as a defendant.2

Heinrich explained that “where statutory or constitutional provisions create an 

entitlement to payment, suits seeking to require state officers to comply with the law are 

not barred by immunity merely because they compel the state to make those payments.” 

Heinrich, 284 S.W.3d at 371 (citing W.D. Haden Co. v. Dodgen, 158 Tex. 74, 308 

S.W.2d 838, 841 (1958)). “[S]uits to require state officials to comply with statutory or 

constitutional provisions are not prohibited by sovereign immunity, even if a declaration 

to that effect compels a payment of money.” Heinrich, 284 S.W.3d at 372. “To fall 

within this ultra vires exception, a suit must not complain of a government officer’s 

exercise of discretion, but rather must allege, and ultimately prove, that the officer acted 

without legal authority or failed to perform a purely ministerial task.” Id.

It follows that suits of this nature “cannot be brought against the state, which 

retains immunity, but must be brought against the state actors in their individual 

capacity.” Id. at 373. “This is true even though the suit is, for all practical purposes, 

against the state.” Id. “[A] claimant who successfully proves an ultra vires claim is 

entitled to prospective injunctive relief, as measured from the date of injunction.” Id. at 

376. As the supreme court observed, these circumstances create a “curious situation.” 

Id. at 374. “[T]he basis for the ultra vires rule is that a government official is not 

following the law, so that immunity is not implicated, but because the suit is, for all 

practical purposes, against the state, its remedies must be limited.” Id.

A. The County Commissioners

The County Commissioners contend that the ultra vires exception to governmental 

immunity from suit is inapplicable here because AT&T “alleged no actions whatsoever 

by the Commissioners.”

 

2

 AT&T alleged: “The City remains a party to this action because the claims alleged involve the 

validity of a City ordinance . . . .” See Heinrich, 284 S.W.3d at 373 n.6 (“For claims challenging the 

validity of ordinances or statutes, however, the Declaratory Judgment Act requires that the relevant 

governmental entities be made parties, and thereby waives immunity.”) (citing Tex. Civ. Prac. & Rem. 

Code § 37.006(b)).
9

According to the County Commissioners, “AT&T simply alleged that the Flood 

Control District ‘refused to confirm’ its ‘obligation to bear the expense of relocating 

AT&T Texas’s facilities.’” Because the County Commissioners “had no legal duty to 

confirm anything to AT&T Texas[,]” the commissioners argue that AT&T’s petition 

“contains no allegation that any officer of the District ‘acted without legal authority or 

failed to perform a purely ministerial act.’” At most, the County Commissioners contend 

that AT&T alleged they were “threatening to commit ultra vires acts.” They conclude 

that dismissal for lack of subject matter jurisdiction was warranted because Heinrich

“makes no mention of prospective claims, only prospective relief.”

AT&T responds that the Heinrich exception is satisfied because the Flood Control 

District asked the City to direct AT&T to relocate its facilities at no cost to the Flood 

Control District. AT&T subsequently wrote a letter dated April 30, 2007, addressed to 

the deputy director of the City of Houston Public Works and Engineering Department’s 

Engineering and Construction Division; Tom Rackley of the Flood Control District was 

cc’d on the letter. AT&T stated in its letter: “AT&T Texas will relocate its facilities 

provided that the Harris County Flood Control District . . . submits a utility adjustment 

agreement . . . in which the HCFCD agrees to reimburse AT&T Texas for 100% of the 

actual costs associated with this relocation.” The City responded with a letter dated May 

16, 2007, in which it stated as follows: “The fact that this Public Works and Engineering 

project is being undertaken by the Harris County Flood Control District on behalf of the 

City does not relieve AT&T from the responsibility to relocate.” The letter continues: 

“Should we not have an agreed schedule for relocation within 60 days of the Final 

Notice, the City may act in accordance with Section 40-397.”

Based on these circumstances, AT&T argues as follows: “[I]f AT&T Texas had 

complied with the City’s relocation directive and waited until the HCFCD refused to 

compensate it for relocation costs after the fact, AT&T Texas would have no recourse 

because it would be asserting a claim for damages from which the HCFCD and the 

Commissioners have governmental immunity.” See, e.g., Rolling Plains Groundwater 
10

Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 760 (Tex. 2011).

We agree with AT&T that the circumstances pleaded here are framed to fit within 

the ultra vires exception described in Heinrich. As permitted by Heinrich, AT&T sought 

prospective declaratory and injunctive relief. See Heinrich, 284 S.W.3d at 369. Suits 

such as this to require compliance “with statutory or constitutional provisions are not 

prohibited by sovereign immunity;” a suit can be predicated on an officer’s action 

undertaken without legal authority, or on an officer’s failure to act. Id. at 372.

To some degree, the separate inquiries into subject matter jurisdiction and the 

merits of statutory interpretation unavoidably tend to converge on appeal. Determining 

whether the specific act requested of but not performed by a government official is 

sufficiently “ministerial” to fit within the ultra vires exception depends in part on what 

the statute at issue does – or does not – require the official to do. Cf. Houston Mun. 

Emps. Pension Sys. v. Ferrell, 248 S.W.3d 151, 160 (Tex. 2007) (Brister, J., concurring) 

(“A different case might be presented if the plaintiffs alleged the board was clearly 

violating some provision of the statute. Article 6243h gives the pension board complete 

discretion to interpret the statute, but not to violate it.”). In the context of this case, we 

believe the jurisdictional inquiry is appropriately addressed in conjunction with the

determination regarding section 49.223’s meaning.

We also believe that further uncertainty will be added to an already murky area of 

the law if we follow the County Commissioners’ suggestion to distinguish between more 

emphatic failures to act – for which subject matter jurisdiction exists under the ultra vires 

exception – and less emphatic failures to act – for which subject matter jurisdiction does 

not exist. Short of receiving a bill from AT&T for already-incurred relocation expenses 

and refusing to pay, it is not clear how much more emphatic the targeted failure to act 

must be to satisfy the County Commissioners’ conception of ultra vires. As AT&T 

correctly notes, pursuit of a judgment declaring AT&T’s right to reimbursement for 

already-incurred facility relocation expenses would be fraught with jurisdictional hurdles. 

See City of Houston v. Williams, 216 S.W.3d 827, 828-29 (Tex. 2007) (per curiam) 
11

(Retired firefighters could not pursue declaratory judgment action to recover amounts 

previously withheld from lump-sum termination payments in violation of statute; “[t]he 

only injury the retired firefighters alleged has already occurred, leaving them with only 

one plausible remedy – an award of money damages.”)

B. Marcotte

The convergence of subject matter jurisdiction and the merits of statutory 

interpretation is illustrated by Marcotte’s contentions. He argues that there is no evidence 

of an ultra vires act on his part because “the District had no statutory obligations under 

the Water Code, and the City is empowered by both common law and statute to require 

AT&T to relocate its facilities . . . .” As framed by Marcotte, his subject matter 

jurisdiction argument is co-extensive with the merits of interpreting section 49.223 and 

will be addressed below.

II. Statutory Interpretation

A. Determining the Governing Statutory Interpretation Standard

The parties launch their respective interpretations of section 49.223 from different 

starting points.

The County Commissioners and Marcotte invoke the “strict construction” standard 

applied in Southwestern Bell Telephone, L.P. v. Harris County Toll Road Authority, 282 

S.W.3d 59, 64 (Tex. 2009). They advocate strict construction in reliance on the 

following precept: “‘[I]f a statute creates a liability unknown to the common law . . . 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.’” Id. (citing Satterfield v. 

Satterfield, 448 S.W.2d 456, 459 (Tex. 1969)). According to the County Commissioners 

and Marcotte, section 49.223 creates “a liability unknown to the common law” because 

the common law rule is that “a utility forced to relocate from a public right-of-way must 

do so at its own expense.” Id. at 62.

AT&T counters by arguing that section 49.223 should be liberally construed to 
12

achieve its purpose. See Tex. Gov’t Code Ann. § 312.006(b) (Vernon 2013). AT&T 

argues that the strict construction standard applied in Southwestern Bell does not reach 

this dispute because “AT&T Texas does not assert any claim for ‘liability’ against the

HCFCD, nor does it contend that section 49.223 of the Texas Water Code gives it a cause 

of action against the HCFCD for damages.” AT&T stresses that it “asserts a declaratory 

judgment claim to resolve a controversy over the proper interpretation of a statute” rather 

than a liability claim seeking damages. AT&T further argues that Texas courts have 

applied the strict construction standard articulated in Southwestern Bell “only . . . in cases 

where a party asserted a statutory claim for damages or a common law claim for damages 

based on an underlying statutory duty.”

The parties’ competing arguments make it appropriate to discuss Southwestern 

Bell in some detail.

The case arose when Southwestern Bell billed Harris County for the cost of 

relocating underground telecommunication facilities located in the public right-of-way 

along Westpark Road in connection with construction of the Westpark Tollway. Sw. Bell 

Tel., L.P., 282 S.W.3d at 60-61. After Harris County refused to pay, Southwestern Bell 

sued seeking reimbursement under the Transportation Code; it also asserted a claim for 

inverse condemnation under the Texas Constitution. See Tex. Const. art. I, §§ 17, 19; 

Tex. Transp. Code Ann. § 251.102 (Vernon 1999). The trial court granted summary 

judgment in favor of Southwestern Bell. Sw. Bell Tel., L.P., 28 S.W.3d at 61. The court 

of appeals reversed, holding that Harris County was immune from suit on the statutory 

claim and that Southwestern Bell had no vested property interest in the right-of-way for 

purposes of an inverse condemnation claim. Id. The Texas Supreme Court affirmed the 

court of appeals, holding that (1) “whatever interest SBC has, that interest did not include 

the right to require the county to pay for relocation of its facilities;” and (2) “section 

251.102 does not clearly waive governmental immunity, and . . . Harris County has not 

otherwise waived its immunity from suit . . . .” Id. at 61, 70.

In analyzing whether Southwestern Bell possessed a vested property interest in the 
13

right-of-way, the supreme court began with the “‘long-established common law 

principle’” that “‘a utility forced to relocate from a public right-of-way must do so at its 

own expense.’” Id. at 62 (quoting Norfolk Redevelopment & Hous. Auth. v. Chesapeake 

& Potomac Tel. Co., 464 U.S. 30, 34 (1983)). The Texas Supreme Court continued: 

“We have said that ‘[i]n the absence of assumption by the state of part of the expense, it 

is clear that [utility companies] could be required to remove at their own expense any 

installations owned by them and located in public rights of way whenever such relocation 

is made necessary by highway improvements.’” Id. (quoting State v. City of Austin, 160 

Tex. 348, 331 S.W.2d 737, 741 (1960)); see also City of San Antonio v. Bexar Metro. 

Water Dist., 309 S.W.2d 491, 492 (Tex. Civ. App.—San Antonio 1958, writ ref’d) (“The 

main purposes of roads and streets are for travel and transportation, and while public 

utilities may use such roads and streets for the laying of their telegraph, telephone and 

water lines, and for other purposes, such uses are subservient to the main uses and 

purposes of such roads and streets.”).3

Southwestern Bell contended that, notwithstanding the common law rule,

Transportation Code section 251.102 required Harris County to pay for telephone facility 

relocation costs necessitated by construction of the Westpark Tollway. Southwestern 

Bell relied on section 251.102’s provision stating that “‘[a] county shall include the cost 

of relocating or adjusting an eligible utility facility in the expense of right-of-way 

acquisition.’” Sw. Bell Tel., L.P., 282 S.W.3d at 64 (quoting Tex. Transp. Code Ann. § 

251.102).

The supreme court rejected this contention. It noted that a statute creating “‘a 

liability unknown to the common law . . . 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.’” Sw. Bell Tel., L.P. 282 S.W.3d at 64 (quoting Satterfield, 448 S.W.2d at 459). 

Applying this strict construction standard, the supreme court concluded that section 

 

3

 The Forest Hill Street Bridge is a “street” for purposes of this appeal. See City of Houston v. 

Goings, 795 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (“A public bridge 

forming a connecting link in a street or highway is a part of that street or highway.”).
14

251.102 did not overcome the long-established common law principle placing 

responsibility for relocation costs on the utility because (1) this provision failed to 

“clearly delineate classes of relocations that are eligible for reimbursement;” and (2) 

Southwestern Bell’s relocation costs were “not clearly within the statute’s purview.” Id. 

at 67.

AT&T does not quarrel with the common law principle’s existence. Instead, it 

argues that this principle and the accompanying strict construction standard do not apply 

here. AT&T emphasizes that, as permitted by Heinrich, it seeks prospective declaratory 

and injunctive relief against individual governmental officers for facility relocation 

expenses that have not yet been incurred; it does not assert a “liability” claim against the 

Flood Control District or the City under section 49.223 seeking money damages for 

already-incurred facility relocation expenses. It also does not assert a takings claim. 

Therefore, AT&T contends that it does not invoke section 49.223 to create “‘a liability 

unknown to the common law.’” See Sw. Bell Tel., L.P., 28 S.W.3d at 64 (quoting 

Satterfield, 448 S.W.2d at 459).

We reject AT&T’s contention because it elevates form over substance. AT&T’s 

permissible reliance on the ultra vires pleading device mandated by Heinrich does not 

change AT&T’s ultimate aim – namely, to establish “an entitlement to payment” on its 

part for facility relocation expenses in connection with reconstruction of the Forest Hill 

Street Bridge. See Heinrich, 284 S.W.3d at 371.

AT&T has sued seeking prospective relief “to require” governmental officers “to 

comply” with statutory provisions that AT&T relies upon to “create an entitlement to 

payment.” See id. In appropriate circumstances, governmental immunity does not bar 

suits “to require state officials to comply with statutory or constitutional provisions . . . 

even if a declaration to that effect compels the payment of money.” Id. at 372. A 

judgment establishing AT&T’s asserted statutory entitlement to payment in these 

circumstances would establish liability for utility relocation expenses unknown to the 

common law regardless of whether the judgment does so by (1) awarding money 
15

damages to AT&T for already-incurred expenses; or (2) prospectively declaring that 

governmental officials must comply with a statutory directive that “compels the payment 

of money” to AT&T for such expenses when they are incurred. See id. The net effect is 

the same.

We conclude that the strict construction standard discussed in Southwestern Bell

applies here. We now examine section 49.223 in light of that standard.

B. Applying the Statutory Interpretation Standard

The parties’ statutory interpretation fight focuses on this portion of section 

49.223(a): “In the event that the district . . . in the exercise of the power of eminent 

domain or power of relocation or any other power, makes necessary the relocation . . . of 

any . . . telephone properties, facilities, or pipelines . . . all necessary relocations . . . shall 

be done at the sole expense of the district . . . .” It is undisputed that the Flood Control 

District is a “district” for these purposes within the meaning of the Water Code. See Tex. 

Water Code § 49.001(a)(1) (Vernon 2008).

AT&T contends that it is entitled to summary judgment in its favor as a matter of 

law because “section 49.223 . . . applies any time the HCFCD ‘makes necessary’ the 

relocation or alteration of ‘any road, bridge, highway, railroad, electric transmission line, 

telegraph, or telephone properties, facilities, or pipelines.’” According to AT&T, 

“[U]nless the HCFCD is acting outside of its authority (which no one contends in this 

case), whenever the HCFCD makes a relocation necessary, it has a statutory duty to bear 

the expense of relocating AT&T Texas’s facilities.” It continues: “The undisputed facts 

show that the HCFCD made the relocation of AT&T Texas’s facilities necessary.” 

AT&T concludes: “In short, the undisputed evidence shows that the HCFCD has made it 

necessary for AT&T Texas to relocate its facilities from the Forest Hill Bridge through 

the exercise of its power to plan and execute a flood control project in Harris County.”

The County Commissioners respond that “for the statute to be applicable the act in 

question must be that of the District, not that of a third party. Further, the act must have 
16

been done in the exercise of a power, not merely a right or a function. Finally, the act 

must make necessary the relocation of property.” They contend that all three 

prerequisites are missing here and stress that “[t]he request for relocation of the facilities 

came from the City, not the Flood Control District.”

Marcotte and the City likewise contend that “it was the City – not the District –

that ‘made necessary the relocation’ . . . [and] . . . exercised the power to direct AT&T to 

move its wires.” Quoting section 311.001 of the Texas Transportation Code, Marcotte 

and the City further argue that “[a]s a Texas home-rule municipal corporation, the City of 

Houston has ‘exclusive control over and under the streets of the municipality,’ . . . .” 

Additionally, they argue that the City has “‘paramount jurisdiction’” by virtue of its 

status as a Texas home-rule municipal corporation. See City of Breckenridge v. Stephens 

Cnty., 120 Tex. 318, 40 S.W.2d 43, 44 (1931); City of Laredo v. Webb Cnty., 220 S.W.3d 

571, 575-76 (Tex. App.—Austin 2007, no pet.).4

Resolution of this issue turns on the following facts established in the summary 

judgment record.

The Flood Control District is widening the channels of Brays Bayou as part 

of Project Brays.

Project Brays will require approximately 30 bridges to be modified or 

demolished and rebuilt. Doing so will facilitate enlargement of the main 

channel and construction of a regional storm water detention system.

 

4

“The City of Houston is a home-rule city, deriving its power from article XI, section 5 of the 

Texas Constitution.” S. Crushed Concrete, LLC v. City of Houston, No. 11-0270, 2013 WL 561468 at *2 

(Tex. Feb. 15, 2013) (citing Tex. Const. art. XI, § 5). “Home-rule cities have the full power of selfgovernment and look to the Legislature, not for grants of power, but only for limitations on their powers.” 

S. Crushed Concrete, LLC, 2013 WL 561468 at *2 (citing Lower Colo. River Auth. v. City of San Marcos, 

523 S.W.2d 641, 643 (Tex. 1975), and Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948)). 

“[I]f the Legislature decides to preempt a subject matter normally within a home-rule city’s broad powers, 

it must do so with ‘unmistakable clarity.’” In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002) (quoting 

Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993)).

AT&T does not contend on appeal that section 49.223 speaks with the “unmistakable clarity” necessary to 

preempt the City’s relocation ordinance.
17

The Flood Control District is paying to reconstruct the bridges as part of 

Project Brays; the work is being conducted by contractors and consultants 

hired and paid for by the district.

Planning for Project Brays was done by the United States Army Corps of 

Engineers and the Flood Control District.

The Corps and the Flood Control District identified Forest Hill Street 

Bridge, located in and owned by the City, as one of the bridges to be 

replaced as part of Project Brays.

The Flood Control District is paying for demolition of the current Forest 

Hill Street Bridge and for design and construction of its replacement.

The Flood Control District’s manager for Project Brays, Raouf Farid, 

testified that the district is replacing the Forest Hill Street Bridge “under the 

supervision and approval of every aspect of it by the City of Houston.”

AT&T owns telecommunications facilities that are located in a public rightof-way and cross Brays Bayou at the Forest Hill Street Bridge; these 

facilities are attached to the bridge.

Section 8 of the Interlocal Agreement between the Flood Control District 

and the City states: “Where the City has the right to require a public utility 

company . . . to modify and/or replace its facilities at its own cost, the City 

shall designate the District as the City’s project manager, and upon written 

request . . . direct the public utility company . . . to modify and/or relocate 

its facilities . . . at no cost to the City or to the District.”

Pursuant to section 8 of the Interlocal Agreement, the Flood Control 

District’s director sent a letter dated February 8, 2007, to the City’s director 

of the Department of Public Works and Engineering in which he (1) said 

replacement of the Forest Hill Street Bridge “will require the replacement 

of various utilities located on the existing bridge;” and (2) asked the City to 
18

direct AT&T to “modify or relocate” its utilities at AT&T’s expense in 

connection with replacement of the Forest Hill Street Bridge.

The City sent a March 9, 2007, letter to AT&T in which the City directed 

AT&T to relocate its facilities at the Forest Hill Street Bridge. AT&T 

responded in a letter dated April 30, 2007, in which it stated that it would 

relocate its facilities “provided that . . . the HCFCD agrees to reimburse 

AT&T Texas for 100% of the actual costs associated with this location.” 

The City replied in a May 16, 2007, letter in which it stated: “The fact that 

this Public Works and Engineering project is being undertaken by the 

Harris County Flood Control District on behalf of the City does not relieve 

AT&T from the responsibility to relocate.” The letter continues: “Should 

we not have an agreed schedule for relocation within 60 days of the Final 

Notice, the City may act in accordance with Section 40-397.”

The Flood Control District will voluntarily build a new Forest Hill Street 

Bridge as part of Project Brays to satisfy the City’s standards, criteria, and 

requirements, which the City subsequently will maintain.

Farid answered “[n]ot necessarily” to a question asking: “Is the fact that 

the – Brays Bayou is being widened, does that contribute to the need to 

replace certain bridges?” Farid testified that the bridges “could be left 

alone.” He added, “We can leave it like it is and have a narrow channel 

there as we have right now.”

Neither AT&T nor the appellees contend that these circumstances give rise to fact issues 

precluding summary judgment. To the contrary, all parties contend that the record 

establishes the propriety of summary judgment in their favor.

We conclude based on this record that AT&T cannot obtain summary judgment in 

its favor under section 49.223, and that the trial court correctly granted summary 

judgment in favor of the appellees, because the “relocation costs in this case are not 
19

clearly within the statute’s purview . . . .” See Sw. Bell Tel., L.P. 282 S.W.3d at 67. This 

is so for two reasons.

The first reason is the City’s involvement in this process. The City’s involvement 

is important because the statutory payment inquiry focuses on whether the Flood Control 

District “ma[de] necessary the relocation” of AT&T’s facilities “in the exercise of” the 

district’s power.

AT&T notes that the Flood Control District has the power to devise plans and 

construct works to lessen and control floods in Harris County; remove obstructions from 

streams and water courses; use the beds and banks of bayous, rivers, and streams; require 

relocation of roads and highways; exercise the right of eminent domain; and “[t]o do any 

and all other acts or things necessary or proper to carry into effect” its enumerated 

powers. Act of May 15, 1937, 45th Leg., ch. 360 §§ 2.e, 2.j., 9 & 10. AT&T thus 

contends: “These rights and powers plainly include the power to demolish and 

reconstruct the Forest Hill Bridge and to thereby ‘make necessary’ the relocation of 

AT&T Texas’s facilities on the bridge.”

AT&T’s contention erroneously links analysis of the statute’s “makes necessary” 

language to the broader demolition and reconstruction of this bridge as part of the larger 

Project Brays program. The correct analysis in this case focuses more specifically on 

whether the district “ma[de] necessary” the relocation of AT&T’s facilities. The Flood 

Control District asked the City to exercise the City’s authority to order the relocation, and 

the City complied. The Flood Control District’s larger planning and funding activities 

may have been “necessary components of” Project Brays and “but for” causes of the 

relocation, but these activities were “certainly not sufficient on their own to cause the 

project to be undertaken” or the facilities to be relocated. See Air Liquide Am. Corp. v. 

U.S. Army Corps of Eng’rs, 359 F.3d 358, 363 (5th Cir. 2004).

The circumstances in Air Liquide parallel the facts here. The case arose when Air 

Liquide and other pipeline owners sued the Port of Houston and the United States Army 

Corps of Engineers; the pipeline owners asserted multiple claims in connection with costs 
20

attributable to relocating pipelines under the Houston Ship Channel as part of a project 

undertaken by the Port and the Corps to widen and deepen the channel. Id. at 360-61. 

The project was authorized by federal legislation that required the pipeline owners to bear 

pipeline relocation costs. Id. at 361. The Port and the Corps signed a Project 

Cooperation Agreement to begin the channel widening and deepening project. Id. 

Acting on a request by the Port, the Corps then invoked its federal statutory authority to 

require the owners to relocate their pipelines at the owners’ expense. Id.

Among other claims, the pipeline owners sought a declaration that the Port was 

responsible for pipeline relocation costs because it had “required” the relocation. See

Tex. Water Code Ann. § 60.102(a) (Vernon 2004) (“If a district in the exercise of the 

powers conferred by this subchapter or in the exercise of the power of eminent domain or 

the police power requires the relocating, raising, lowering, rerouting, or changing in 

grade, or altering in the construction of any . . . pipeline, the relocating, raising, lowering, 

rerouting, changing in grade, or altering of construction shall be done at the sole expense 

of the district.”).

The Fifth Circuit rejected this claim, concluding that section 60.102(a) “is not 

applicable because the Port did not require the relocation – the Corps did.” Air Liquide 

Am. Corp., 359 S.W.3d at 362 (original emphasis). The Fifth Circuit’s conclusion did not 

change even though the Port’s request was the catalyst for the Corps’ issuance of 

relocation notices to the pipeline owners. Id. at 363. “By requiring removal of an 

obstacle to a navigable waterway, the Corps was acting pursuant to power delegated to it 

by Congress.” Id. “It was pursuant to this power, not the Port’s request, that the Corps 

required the relocation.” Id. 

Similar reasoning applies in this case. Here, as in Air Liquide, the “district” at 

issue contracted with another entity that (1) had authority to compel relocation; and (2) 

was not subject to the statutory directive to pay relocation costs. Id.; cf. City of San 

Antonio, 309 S.W.2d at 492 (“The City of San Antonio, by statute and by the provisions 

of its charter, has control of its streets and can regulate their use by utility companies or 
21

anyone else.”). These circumstances do not clearly demonstrate that the Flood Control 

District has “ma[de] necessary” the relocation of AT&T’s facilities attached to the Forest 

Hill Street Bridge, or that the district has done so “in the exercise of” the district’s power.

AT&T characterizes the City’s relocation directive as “irrelevant” because section 

49.223 focuses on “whether the HCFCD caused or initiated the event or condition that 

necessitates the relocation . . . .” This contention essentially advocates the use of a “but 

for” standard; the Fifth Circuit rejected such a standard in Air Liquide, and we do as well. 

See Air Liquide Am. Corp., 359 F.3d at 363.

As AT&T does in this appeal, the pipeline owners tried to bolster their position in 

Air Liquide by citing a Texas Attorney General opinion addressing a repealed provision 

of the Water Code. See Op. Tex. Att’y Gen. No. MW-412 (1981). The repealed 

provision, Texas Water Code section 50.052, provided that if the Flood Control District 

“requires” the relocation of “telephone lines, conduits, poles, properties, facilities, or 

pipelines,” the relocation “shall be done at the sole expense of the district . . . .” The 

Flood Control District sought an opinion on whether this statute required it to bear the 

costs for lengthening a bridge. Id. The Texas Attorney General opined: “[I]f the district 

widens the channel so as to render the bridge unusable, the district may reasonably be 

said to have acted to require the ‘relocation . . . rerouting . . . . or alteration in 

construction of . . . properties.’” Id. The Fifth Circuit distinguished the attorney general 

opinion because “the Corps, not the Port, required Owners to relocate their pipelines.” 

Air Liquide Am. Corp., 359 F.3d at 363. The circumstances addressed in the attorney 

general’s opinion likewise are distinguishable from those at issue in this case because the 

City required AT&T to relocate its facilities.5

The second reason is project manager Farid’s testimony. He testified that the 

Forest Hill Street Bridge “could be left alone.” He further testified: “We can leave it like 

 

5

 AT&T also cites Bullock v. Greer, 353 S.W.2d 929, 930 (Tex. Civ. App.—Eastland 1962, writ 

ref’d n.r.e.), to support its position on “makes necessary.” Bullock is inapposite because it addresses 

“whether the Water District had the power to condemn appellants’ land for the relocation and raising” of 

a highway to accommodate a dam. Id. This case presents no issue with respect to condemnation.
22

it is and have a narrow channel there as we have right now.” Even if the statutory inquiry

is broadened to encompass the Flood Control District’s actions in managing Project 

Brays as a “but for” cause of relocation, it is by no means clear on this record that Project 

Brays “makes necessary” the demolition of Forest Hill Street Bridge or the relocation of 

facilities currently attached to the bridge.

Under these circumstances, the relocation costs at issue are “not clearly within the 

. . . purview” of section 49.223. Sw. Bell Tel., L.P. 282 S.W.3d at 64 (quoting Satterfield, 

448 S.W.2d at 459). Because AT&T has not established its entitlement to payment under 

section 49.223 for the relocation costs at issue, the trial court properly granted summary 

judgment in favor of the County Commissioners, the City, and Marcotte, and properly 

granted summary judgment against AT&T.

CONCLUSION

We affirm the trial court’s orders granting summary judgment against AT&T, and 

in favor of the appellees.

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce and McCally and Senior Justice Mirabal.

6

 

6

Senior Justice Margaret Garner Mirabal sitting by assignment.