### 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, Appellant s

v. Texas Railroad Commission; Christi Craddick, in Her Official Capacity as Commiss ioner 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 Exe cutive Director of The Texas Railroad Commission; Kari French, in Her Official Capa city 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 , Appellee s

FROM THE 345TH DISTRICT COURT OF TRA VIS COUNTY NO. D
- 1
- GN
- 19
- 00216 1, T HE 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
P laintiffs ’ A PA claims but write separately because I do not agree with its analys is c on cerning
P laintiffs ’ dec la ratory judgment claims against the Railroad Comm ission and its C ommissioners (collecti vely the Commission ) and the ir claims for injunctive relief against the Pipeline En tities

. Thus , I respectf

ully concur in the C ourt ’ s judgment

. In my view , P lain ti ffs ’ pleadings s eek declaratory relief against the Commission
base d on constitutional challenges to section s 181.001 (1) (D) and 181.004 of the Texas Utiliti e s C ode , but the t rial court c orrectly c oncluded that it did no t have juri s dic tio n over tho se c l ai ms2

because they are in capable of succe eding against t h e Commission

. See Tex. Util. Code § § 181. 001 (1) (D) (defining “ corporation ” to in clude gas ut il ity) , . 004 (authorizing gas or elect ric corporation “ to enter on, condemn, and appropri ate th e land, righ t

- of

- way, easement, or other property of any person or corporatio n ”)

. Although the Com mission h as jurisdiction over “persons ow ning or operating pipelines in Texas, ” see T ex. Nat. Res. Code § 81.051(a )( 3),
P laintiffs have not identified a stat u tory direct ive to the Commission to regul ate routing of natural gas pipelines

. And t he legislature ’s grant of eminent domain auth o rity to gas utilities
under section 181.004 derive s from th e Texas Cons titution, see Tex. Co nst. art. I , § 17 , not the
T

- 4 p e rmit , see 1 6 Te x. Admin. Code § 3.70 ( Rai lro ad Comm ’ n, P ipeline P ermit s Required )

.

Further , given that the trial court did no t have jurisdiction over P laintiffs ’ claims against the Commission , the trial court prope rly granted summary j udgment in f avor o f t he Pipel ine Ent ities

. In their first a mended petition, Plaintiffs only seek inju nctive relief against the
P ipeline Entities based on t he lack of regu latory standa rds and controls as to pipeline routing , but they do not contend that the Pipeline E ntitie s , who are priv ate parties , failed to foll ow the current regulatory framework

. Although t he Pipeline Entities have been gra nted eminent domain authority via the Con s ti tution , the P roperty C ode provides procedures for landowner s to contest
the condem nation of their prope rty and to re cover compe nsation , which in my vie w is distinct
from the Pipeline Ent ities ’ business decision s as to the route s for their pipeline s
. 1 See Tex. Prop

. Code §§ 21.011

– .016 (providing standard procedures for exercise of emin ent do main authority)

.

For these reasons , I conc ur in the judgmen t

.

1 I also cannot agree w ith the Court ’ s approach to assu me that the pipeline routing decisions are legislative in na ture . I conc lud e t hat they a re not and, th us, would not reach the Bo l l Weevil test

.3 __________________________________________ Melissa Goodwin , Justice
Before Justi ces Goodwin, Triana , and Smith
Filed: May 20, 2021