TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00469-CV

Andrew Sansom; Heinz Stefan Roesch; Bee Spring, Ltd.; Hays County; and 

City of Kyle, Appellants

v.

Texas Railroad Commission; Christi Craddick, in Her Official Capacity as Commissioner 

of The Texas Railroad Commission; Wayne Christian, in His Official Capacity as 

Commissioner of The Texas Railroad Commission; Wei Wang, in His Official Capacity as 

Executive Director of The Texas Railroad Commission; Kari French, in Her Official 

Capacity as Director of The Oversight and Safety Division—Pipeline Safety of The Texas 

Railroad Commission; Permian Highway Pipeline, LLC; and Kinder Morgan Texas 

Pipeline, LLC, Appellees

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-19-002161, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

C O N C U R R I N G O P I N I O N 

I agree with the Court’s disposition of this appeal and its analysis concerning

Plaintiffs’ APA claims but write separately because I do not agree with its analysis concerning 

Plaintiffs’ declaratory judgment claims against the Railroad Commission and its Commissioners 

(collectively the Commission) and their claims for injunctive relief against the Pipeline Entities. 

Thus, I respectfully concur in the Court’s judgment.

In my view, Plaintiffs’ pleadings seek declaratory relief against the Commission 

based on constitutional challenges to sections 181.001(1)(D) and 181.004 of the Texas Utilities 

Code, but the trial court correctly concluded that it did not have jurisdiction over those claims
2

because they are incapable of succeeding against the Commission. See Tex. Util. Code 

§§ 181.001(1)(D) (defining “corporation” to include gas utility), .004 (authorizing gas or electric 

corporation “to enter on, condemn, and appropriate the land, right-of-way, easement, or other 

property of any person or corporation”). Although the Commission has jurisdiction over 

“persons owning or operating pipelines in Texas,” see Tex. Nat. Res. Code § 81.051(a)(3), 

Plaintiffs have not identified a statutory directive to the Commission to regulate routing of 

natural gas pipelines. And the legislature’s grant of eminent domain authority to gas utilities 

under section 181.004 derives from the Texas Constitution, see Tex. Const. art. I, § 17, not the

T-4 permit, see 16 Tex. Admin. Code § 3.70 (Railroad Comm’n, Pipeline Permits Required).

Further, given that the trial court did not have jurisdiction over Plaintiffs’ claims

against the Commission, the trial court properly granted summary judgment in favor of the 

Pipeline Entities. In their first amended petition, Plaintiffs only seek injunctive relief against the 

Pipeline Entities based on the lack of regulatory standards and controls as to pipeline routing, but 

they do not contend that the Pipeline Entities, who are private parties, failed to follow the current 

regulatory framework. Although the Pipeline Entities have been granted eminent domain

authority via the Constitution, the Property Code provides procedures for landowners to contest 

the condemnation of their property and to recover compensation, which in my view is distinct 

from the Pipeline Entities’ business decisions as to the routes for their pipelines.

1

See Tex. Prop. 

Code §§ 21.011–.016 (providing standard procedures for exercise of eminent domain authority).

For these reasons, I concur in the judgment.

1

I also cannot agree with the Court’s approach to assume that the pipeline routing 

decisions are legislative in nature. I conclude that they are not and, thus, would not reach the 

Boll Weevil test.
3

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Triana, and Smith

Filed: May 20, 2021