Replacement easements are not costs “properly attributable to the relocation” of utility easements says 14th Court of Appeals.

Texas Transportation Commission and Ted Houghton, in his official capacity as chair the. Texas Transportation Commission v. City of Jersey Village, 14-14-00823-CV (Tex. App. – Houston, [14th Dist], October 15, 2015)

Texas Department of Transportation is widening U.S. Highway 290 to include additional lanes which requires the acquisition of public right-of-ways. The improvement project likely will require the relocation of two additional utility lines owned by Jersey Village. Texas Transportation Code §203.092(a) provides in relevant part that the State shall pay for the relocation of a utility facility if the relocation is required by improvement of any segment of the state highway system and the utility “has a compensable property interest in the land occupied by the facility to be relocated.” Tex. Transp. Code Ann. §203.092(a)(2) (West 2014). Because Jersey Village contends that it has a compensable property interest in its utility easements, it requested the Department to pay for the relocation of its utility lines.  While the parties entered into a partial settlement for removal of the lines, the Department refused to agree to pay for the costs of obtaining new easements for placement of new lines.  The City sued. The Department filed a plea to the jurisdiction which was denied. The trial court granted summary judgment for the City.

Jersey Village’s “request for declaratory relief” is nothing more than an ultra vires claim contending that the Commission, a state agency, and Houghton, a state official, have refused to perform a ministerial act by refusing to pay certain relocation costs that Jersey Village contends are owed.  The Commission is immune from ultra vires claims. The court then turned to statutory construction principles to determine if Houghton failed to follow a ministerial duty under §203.092. The dispute centers around whether Jersey Village has a compensable property interest in its easements, and whether replacement easements are costs that are “properly attributable to the relocation.” The court first held Jersey Village does have a compensable property interest in the easements. So it is entitled to costs, but only those properly attributable to the relocation. After analyzing the text, the court held the costs for replacement easements are not costs “properly attributable to the relocation.”  As a result, Houghton did not fail to perform a ministerial act and is not required to reimburse the City for replacement easements.

If you would like to read this opinion click here.  Panel: Chief Justice Frost, Justice Boyce, and Justice McCally.  Opinion given by Justice Boyce.  Attorney for the Appellee is Charles W. Irvine.  Attorney for the Appellant is Anthony G. Brocato Jr.