Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:CenterPoint Energy Houston Electric and CenterPoint Energy Entex are utility providers for the city of Houston, with which they have had a franchise agreement since 1957. CenterPoint has no such agreement with Harris County, surrounding the city. In June 2001, Harris County began construction on the Westpark Tollway. The construction required CenterPoint to relocate some of its gas and electric facilities to the city, which cost more than $10 million. Both before the relocation and after, CenterPoint asked the county to pay for its relocation costs, but the county refused. CenterPoint sued. The district court granted CenterPoint’s motion for summary judgment (and denied the county’s motion), ruling that Transportation Code ��251.101 and 251.102 required the county to pay CenterPoint’s relocation costs. Section 251.101 provides a means for counties to acquire property to build or improve roadways. As a part of that process, �251.102 mandates that “[a] county shall include the cost of relocating or adjusting an eligible utility facility in the expense of right of way acquisition.” Though the judgment awarded interest, the district court denied CenterPoint’s request for attorneys’ fees. HOLDING:Affirmed in part; vacated and remanded in part. The court first points out that if the common law still applied, it would be clear that CenterPoint would be required to bear its own relocation costs. Under the cited statutes, however, it is clear that an eligible utility facility is entitled to relocation costs. The question, then, is whether CenterPoint is an “eligible utility facility.” To determine meaning of “eligible utility facility,” the court looks first to the purposes of the Transportation Act, noting that when it was codified the act directed future questions of interpretation to the statutory construction aids listed in Texas Government Code �311.023. Section 311.023 instructs the court to examine the title and preamble of the Transportation Act, noting that the codification was not intended to effect any substantive change. Another construction aid is former statutory provisions, including laws on similar subjects. For instance, a prior statute states that to an “eligible” utility is one that incurs a relocation cost as a result of a highway acquisition. The court rules that it can “only conclude that the Texas Legislature intended the term”eligible utility facilities’ to be interpreted and applied consistently in each of its uses in the title.” Having determined that ��251.101 and 251.102 were intended to retain the same meaning of “eligible utility facilities” as in the precodified statute, and also having concluded that the term “eligible utility facility” refers to a utility incurring relocation costs that are “eligible under the law” for reimbursement, the court then turns to consider whether CenterPoint is an “eligible utility facility” within the meaning of �251.102. No one disputes that CenterPoint met the first requirement of incurring costs from a county acquisition for highway construction. To determine if CenterPoint is “eligible under the law,” the court extends the holding in State v. City of Austin, 331 S.W.2d 737 (Tex. 1960), which imposes a relocation-reimbursement on the state, to the county in this case. The City of Austin case said the state has plenary power to regulate roads, and it can delegate that power to localities. Upon delegation, legislative directives to make certain payments must be obeyed unless they violate the Texas Constitution. A directive to pay is constitutionally sound so long as it operates prospectively, deals with the matter in which the public has a real and legitimate interest and is not fraudulent, arbitrary or capricious. “First, there is no contention that � 251.102 operates retrospectively in this case � nor could there be. The cost was incurred long after the statute requiring payment was passed. Second, the ‘public . . . has a direct and immediate interest in the relocation of utility facilities which would otherwise interfere with highway improvements.’ . . . Finally, there is no evidence or contention that the statute, nor the proposed payment to CenterPoint, can be said to be ‘fraudulent, arbitrary or capricious.’ . . . In sum, because relocation costs incurred by CenterPoint are ‘eligible under the law’ for reimbursement, CenterPoint is an ‘eligible utility facility’ under � 251.102 of the Texas Transportation Code.” The court vacates the nonaward of attorneys’ fees and prejudgment interest because the district court did not include any analysis or reasons for its ruling. OPINION:Jolly, J.; Jolly, Barksdale and Little, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.