                                                                                  ACCEPTED
                                                                             12-14-00329-CV
                                                                 TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                         1/5/2015 9:11:47 AM
                                                                                CATHY LUSK
                                                                                      CLERK

                        NO. 12-14-00329-CV

                         IN THE                 FILED IN
                                         12th COURT OF APPEALS
                TWELFTH COURT OF APPEALS      TYLER, TEXAS
                                          1/5/2015 9:11:47 AM
                      TYLER, TEXAS
                                                          CATHY S. LUSK
____________________________________________________________________
                                                          Clerk

IN RE TARRANT REGIONAL WATER DISTRICT
___________________________________________________________________


        RESPONSE TO PETITION FOR WRIT OF MANDAMUS

___________________________________________________________________




                                    Keith Dollahite
                                    State Bar No. 05958550
                                    M. Keith Dollahite, P.C.
                                    5457 Donnybrook Avenue
                                    Tyler, Texas 75701
                                    (903) 581-2110
                                    (903) 581-2113 (Facsimile)
                                    keith@mkdlaw.us


                                    ORAL ARGUMENT REQUESTED
                                               TABLE OF CONTENTS

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.        The Court should deny mandamus relief because TRWD has an adequate remedy of
          an accelerated interlocutory appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II.       Alternatively, the Court should deny mandamus relief because the trial court must
          determine whether it has jurisdiction before it appoints commissioners. . . . . . . . . 4

          A.        As a governmental entity, Lazy W has governmental immunity. . . . . . . . . 4

          B.        The principles governing Lazy W’s governmental immunity are well settled.
                    ............................................................ 5

          C.        Governmental immunity bars a condemnation action unless the statute clearly
                    and unambiguously waives such immunity.. . . . . . . . . . . . . . . . . . . . . . . . . 7

          D.        The statute granting the power of eminent domain to TRWD does not clearly
                    and unambiguously waive the governmental immunity of Lazy W. . . . . . 12

          E.        TRWD cites no authority for its argument that it can condemn the property of
                    a governmental entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

          F.        For the purpose of governmental immunity, this is a suit, not an administrative
                    proceeding. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

          G.        Even if the proceeding in the trial court is in its “administrative phase,” Lazy
                    W’s governmental immunity still applies. . . . . . . . . . . . . . . . . . . . . . . . . . 20

          H.        If the Court orders the trial court to appoint commissioners, Lazy W will lose
                    the fundamental protection afforded by governmental immunity.. . . . . . . 21

                                                                   i
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate for Factual Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27




                                                                   ii
                                              INDEX OF AUTHORITIES

Cases

Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878 (Tex.1973). . . . . . . . . . . . . . . . 8

Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas.
      Joint Self-Ins. Fund, 212 S.W.3d 320 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 6

Benat v. Dallas Cnty., 266 S.W. 539 (Tex. Civ. App. – Dallas 1924, writ ref’d) . . . . . . 17

Bennett v. Brown Cnty. Water Imp. Dist. No. 1, 272 S.W.2d 498 (Tex. 1954). . . . . . . . . 4

Canyon Reg'l Water Auth. v. Guadalupe–Blanco River Auth., 258 S.W.3d 613 (Tex. 2008)
     . ................................................................ 8

City of Houston v. Williams, 353 S.W.3d 128 (Tex.2011). . . . . . . . . . . . . . . . . . . . . . . . 17

City of Sachse, Texas v. Kansas City S., 564 F. Supp. 2d 649 (E.D. Tex. 2008). . . . . . . 19

Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, 369 S.W.3d 845 (Tex. 2012)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, et seq.

Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, 331 S.W.3d 91 (Tex. App. –
Dallas 2010), rev’d on other grounds, 369 S.W.3d 845 (Tex. 2012). . . . . . . . . . . . . . . . . 7

Dann v. Athens Mun. Water Auth., 2007 WL 2460058 (Tex. App. – Tyler 2007, no pet.) (not
      released for publication). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

El Paso County v. City of El Paso, 357 S.W.2d 783 (Tex. Civ. App. – El Paso 1962, no writ)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Federal Maritime Com'n v. South Carolina State Ports Authority, 122 S. Ct. 1864 (2002)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Harris Cnty., Texas v. Union Pac. R. Co., 807 F. Supp. 2d 624 (S.D. Tex. 2011), on recon.,
       2012 WL 4339075 (S.D. Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508 (Tex. App. –
      Houston [14th Dist] 1987, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

                                                                     iii
In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

In re Energy Transfer Fuel, LP, 250 S.W.3d 178 (Tex. App. – Tyler 2008, orig. proc.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18

In re Francis, 186 S.W.3d 534 (Tex. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

In re Santander Consumer USA, Inc., 2013 WL 652721 (Tex. App. – Houston [1st Dist.]
       2013, orig. proc.) (not released for publication). . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

In re State, 85 S.W.3d 871 (Tex. App. – Tyler 2002, orig. proc.) . . . . . . . . . . . . . . . . . . 15

In re Texas Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)
      (mandamus denied because T EX. F AM. C ODE § 263.405 provided an accelerated
      appeal).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014). . . . . . . . . . . . . . . . . . . 18-19

Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845 (Tex. 2012)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, et seq.

Peak Pipeline Corp. v. Norton, 629 S.W.2d 185 (Tex. App. – Tyler 1982, no writ) . . . . 15

Pinnacle Gas Treating, Inc. v. Read, 160 S.W.3d 564 (Tex. 2005). . . . . . . . . . . . 2, 16-17

Raymond Overseas Holding, Ltd. v. Curry, 955 S.W.2d 470 (Tex. App. – Fort Worth 1997,
     orig. proc.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

Sabine & E. Tex. Ry. Co. v. Gulf & Interstate Ry. Co., 46 S.W. 784 (Tex. 1898). . . . . . . 8

Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002). . . . 22

Texas Parks & Wildlife Dep't v. Garland, 313 S.W.3d 920 (Tex. App. – Tyler 2010, no pet.)
      . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6, 13

Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). . . . . . . . . 2, 18

Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22



                                                                     iv
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003). . . . . . . . . . . . . . . . . . . 6


Statutes

T EX. C IV. P RAC. & R EM. C ODE § 51.014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 23, 24

T EX. G OV'T C ODE §§ 311.005, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T EX. P ROP. C ODE § 21.014, et seq.. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

T EX. S PEC. D IST. L OC. L AWS C ODE § 8380.002, et seq.. . . . . . . . . . . . . . . . . . . . . . . . . . . 4

T EX. U TIL. C ODE § 181.004. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

T EX. W ATER C ODE § 49.222.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, et seq.


Rules

T EX. R. A PP. P. 28.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3


Other

T EX. C ONST. A RT. XVI, § 59. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                                 v
                                   ISSUES PRESENTED

1.     Does TRWD have an adequate remedy of an accelerated interlocutory appeal, which
       precludes mandamus relief?

2.     In a condemnation action against a governmental entity, is a trial court required to
       appoint commissioners, allow the commissioners to make their award, allow the
       condemnor to deposit the award with the court, and allow the condemnor to take
       possession of the property of the governmental entity, before the trial court can rule
       on the plea to the jurisdiction of the governmental entity?

                                 STATEMENT OF FACTS

       TRWD filed a petition for condemnation against Lazy W – a governmental entity –

to take by eminent domain a permanent water pipeline easement and right of way covering

11.623 acres of land owned by Lazy W (CR 1-7). In response, Lazy W filed a plea to the

jurisdiction, asserting that its governmental immunity bars this condemnation suit (CR 40-

41). After a hearing, the trial court signed an order stating: “the court at this time declines to

appoint special commissioners in this case and will only do so, if at all, after a hearing has

been set and held on the plea to the jurisdiction of [Lazy W] and a ruling is made by the court

on that plea” (CR 619). Instead of proceeding with a hearing on the plea to the jurisdiction,

however, TRWD filed this original proceeding, asking the Court to issue a writ of mandamus

ordering the trial court to appoint commissioners, to allow the commissioners to make their

award, to allow TRWD to deposit the award with the court, and to allow TRWD to take

possession of Lazy W’s property, before the trial court rules on Lazy W’s plea to the

jurisdiction.




                                                1
                           SUMMARY OF THE ARGUMENT

       First, TRWD is not entitled to mandamus relief because TRWD has an adequate

remedy of an accelerated interlocutory appeal. If the trial court grants Lazy W’s plea to the

jurisdiction, TRWD can immediately appeal such ruling in an accelerated interlocutory

appeal. T EX. C IV. P RAC. & R EM. C ODE § 51.014; T EX. R. A PP. P. 28.1. As a result, the Court

should issue an order dismissing this original proceeding and instructing the trial court to rule

on Lazy W’s plea to the jurisdiction before taking any other action.

       Second, if the Court considers TRWD’s petition, the Court should deny TRWD’s

request for a writ of mandamus. A trial court must have jurisdiction to appoint

commissioners in a condemnation case. Pinnacle Gas Treating, Inc. v. Read, 160 S.W.3d 564

(Tex. 2005). Lazy W’s governmental immunity includes immunity from suit, which deprives

the trial court of jurisdiction to appoint commissioners. To proceed in this case, TRWD must

prove that the Legislature clearly and unambiguously waived Lazy W’s governmental

immunity. TRWD claims eminent domain power under T EX. W ATER C ODE § 49.222, but that

statute does not even purport to waive the immunity of governmental entities so that TRWD

can condemn Lazy W’s property. In light of the Supreme Court’s mandate that a trial court

must rule on a plea to the jurisdiction of a governmental entity before taking any other action

in the case, Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004),

the trial court properly declined to appoint commissioners before ruling on Lazy W’s plea

to the jurisdiction.



                                               2
                                        ARGUMENT

I.     The Court should deny mandamus relief because TRWD has an adequate remedy of
       an accelerated interlocutory appeal.

       As shown below, Lazy W is a governmental entity with governmental immunity,

which bars this condemnation action unless the Legislature has waived its immunity. The

trial court held that it must first rule on Lazy W’s plea to the jurisdiction before it rules on

TRWD’s request to appoint commissioners (RR 27). The trial court has not yet ruled on Lazy

W’s plea to the jurisdiction.

       TRWD cites cases in which an appellate court granted mandamus relief in a

condemnation action, but the cases did not involve an order for which the relator had the

right of an accelerated interlocutory appeal.1 In this case, the trial court’s grant or denial of

Lazy W’s plea to the jurisdiction will be immediately appealable to this Court in an

accelerated interlocutory appeal. T EX. C IV. P RAC. & R EM. C ODE § 51.014; T EX . R. A PP. P.

28.1. If the trial court grants Lazy W’s plea to the jurisdiction, TRWD can immediately

appeal such ruling. Consequently, the Court should deny TRWD’s petition for a writ of

mandamus because TRWD has an adequate remedy by an accelerated interlocutory appeal.

See In re Texas Dep't of Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006)

(mandamus denied because T EX. F AM . C ODE § 263.405 provided an accelerated appeal).

Accord, In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 207




       1
           Petition at pgs. 9-10.

                                               3
(Tex. 2009); In re Santander Consumer USA, Inc., 2013 WL 652721 (Tex. App. – Houston

[1st Dist.] 2013, orig. proc.) (not released for publication); Raymond Overseas Holding, Ltd.

v. Curry, 955 S.W.2d 470, 471 (Tex. App. – Fort Worth 1997, orig. proc.). Cf. In re Francis,

186 S.W.3d 534, 538 (Tex. 2006).

II.    Alternatively, the Court should deny mandamus relief because the trial court must
       determine whether it has jurisdiction before it appoints commissioners.

       A.     As a governmental entity, Lazy W has governmental immunity.

       Lazy W is “a municipal utility district created under Section 59, Article XVI, Texas

Constitution.” T EX. S PEC. D IST. L OC. L AWS C ODE § 8380.002. Municipal utility districts are

“governmental agencies and bodies politic and corporate with such powers of government

and with the authority to exercise such rights, privileges and functions ... as may be conferred

by law.” T EX . C ONST. A RT. XVI, § 59. Lazy W “has the powers and duties necessary to

accomplish the purposes for which the district is created.” T EX. S PEC. D IST. L OC. L AWS C ODE

§ 8380.101. Lazy W “has the powers and duties provided by the general law of this state,

including Chapters 49 and 54, Water Code, applicable to municipal utility districts ....” Id.

at § 8380.102. A municipal utility district is “a governmental agency and body politic” and

has governmental immunity. Bennett v. Brown Cnty. Water Imp. Dist. No. 1, 272 S.W.2d

498, 502 (Tex. 1954). Accord, Dann v. Athens Mun. Water Auth., 2007 WL 2460058 (Tex.

App. – Tyler 2007, no pet.) (not released for publication).




                                               4
       B.        The principles governing Lazy W’s governmental immunity are well settled.

       “[S]overeign immunity has two components: immunity from suit and immunity from

liability.” Texas Parks & Wildlife Dep't v. Garland, 313 S.W.3d 920, 923 (Tex. App. – Tyler

2010, no pet.).2 “Immunity from suit is jurisdictional and bars suit; immunity from liability

is not jurisdictional and protects from judgments. Sovereign immunity from suit deprives a

trial court of subject matter jurisdiction.” Id. “The absence of subject matter jurisdiction may

be raised by a plea to the jurisdiction. Whether a court has subject matter jurisdiction is a

question of law.” Id. “An appellate court addressing a challenge to a trial court's subject

matter jurisdiction reviews the trial court's ruling de novo.” Id.

       “When a plea to the jurisdiction challenges the pleadings, we determine if the pleader

has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. We

construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent.” Id.

“If the pleadings affirmatively negate the existence of jurisdiction, a plea to the jurisdiction

may be granted without allowing the plaintiff an opportunity to amend. If the pleadings do

not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do

not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiff should be afforded the opportunity to amend.” Id. “If a plaintiff

has been provided a reasonable opportunity to amend after a governmental entity files its plea

to the jurisdiction, and the plaintiff's amended pleading still does not allege facts that would


       2
           Internal citations and quotations are omitted throughout this response.

                                                  5
constitute a waiver of immunity, the trial court should dismiss the plaintiff's action. Such a

dismissal is with prejudice because a plaintiff should not be permitted to relitigate

jurisdiction once that issue has been finally determined.” Id. at 923-924.

       “In order for the State's immunity to be waived and the trial court to have jurisdiction,

a party must show that the State has consented to suit. Consent can be established by statute

or legislative resolution.” Id. at 924. “For the Legislature to waive sovereign immunity by

enacting a statute, it must do so by clear and unambiguous language.” Id. at 925.

       “Though closely related and often used interchangeably, sovereign immunity and

governmental immunity protect distinct entities.” Ben Bolt-Palito Blanco Consol. Indep. Sch.

Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 324

n.2 (Tex. 2006). “Sovereign immunity refers to the State's immunity from suit and liability.

In addition to protecting the State from liability, it also protects the various divisions of state

government, including agencies, boards, hospitals, and universities. Governmental immunity,

on the other hand, protects political subdivisions of the State, including counties, cities, and

school districts.” Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003).




                                                6
       C.     Governmental immunity bars a condemnation action unless the statute clearly
              and unambiguously waives such immunity.

       In Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845 (Tex.

2012), an electric utility wanted an easement for its electrical transmission line to cross a

public transportation commuter rail. Two governmental entities – the Dallas Area Rapid

Transit and Fort Worth Transportation Authority – owned and operated the commuter rail.

The utility filed its plan for its electric line with the Public Utility Commission, which

approved the plan. The utility attempted to negotiate for an easement with the governmental

entities, without success. The utility then filed a condemnation proceeding against the two

governmental entities for the easement. The governmental entities responded by filing a plea

to the jurisdiction asserting that their governmental immunity barred the condemnation

action. The trial court denied their plea to the jurisdiction and they appealed.

       The Dallas Court of Appeals addressed the utility’s four arguments on appeal. First,

the utility argued that governmental immunity does not apply because a condemnation case

does not seek money damages and is more like the type of declaratory judgment action to

which governmental immunity does not apply. Rejecting this argument, the Dallas Court held

that governmental immunity applies to a condemnation action:

              It is clear that a suit against the state for condemnation of an
              easement is a suit to divest the state of property with
              compensation to be declared by a court.... We cannot see that
              condemnation actions are free from the doctrine of
              governmental immunity, while other similar actions against the
              state are barred by immunity. It is significant to us that the state
              is immune from a suit to declare the rights to title and

                                               7
              possession of real property, even where such suit does not
              involve money damages. See Porretto v. Patterson, 251 S.W.3d
              701, 708 (Tex. App. – Houston [1st Dist.] 2007, no pet.) (citing
              State v. Lain, 162 Tex. 549, 349 S.W.2d 579, 582 (1961)
              (“[w]hen in this state the sovereign is made a party defendant to
              a suit for land, without legislative consent, its plea to the
              jurisdiction of the court based on sovereign immunity should be
              sustained”).

Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, 331 S.W.3d 91, 99 (Tex. App.

– Dallas 2010), rev’d on other grounds, 369 S.W.3d 845 (Tex. 2012).

       Second, the utility argued that governmental immunity does not apply because prior

cases had recognized the “paramount importance rule,”which holds that if the property to be

condemned is already devoted to another public use, then condemnation is inappropriate if

the condemnee establishes that permitting condemnation would either practically destroy or

materially interfere with the existing public use. See Canyon Reg'l Water Auth. v.

Guadalupe–Blanco River Auth., 258 S.W.3d 613, 617 (Tex. 2008); Austin Indep. Sch. Dist.

v. Sierra Club, 495 S.W.2d 878, 882 (Tex.1973); and Sabine & E. Tex. Ry. Co. v. Gulf &

Interstate Ry. Co., 46 S.W. 784, 786 (Tex. 1898). The Dallas Court correctly noted,

however, that in the “paramount importance” cases, the condemnee did not raise the defense

of governmental immunity. Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC, 331

S.W.3d at 99-100. As a result, the Court refused to construe the paramount importance line

of cases as authority for the utility’s position that governmental immunity does not apply to

a condemnation action. Id. at 100.




                                             8
       Third, the utility contended that pre-codified eminent domain law gave it the power

to condemn public land; that the power to condemn public land necessarily waives

governmental immunity; and that the codification of its eminent domain power in T EX. U TIL.

C ODE § 181.004 did not change is pre-existing power to condemn public lands. The Court

examined § 181.004 – the statute that granted the power of eminent domain to the utility –

which provides that an electric corporation has the power to “enter on, condemn, and

appropriate the land, right-of-way, easement, or other property of any person or corporation.”

T EX. U TIL. C ODE § 181.004. The Code Construction Act defines a “person” to include a

“governmental subdivision or agency,” but also states that doing so “does not indicate

legislative intent to waive sovereign immunity unless the context of the statute indicates no

other reasonable construction.” T EX. G OV 'T C ODE §§ 311.005, 311.034. The Dallas Court

noted that “the longstanding mandate from the Texas Legislature and the Texas Supreme

Court that a waiver of governmental immunity in a statute must be clearly and

unambiguously stated,” and that T EX. U TIL. C ODE § 181.004, which granted the power of

eminent domain to the utility, did not clearly and unambiguously waive the immunity of the

governmental entities. Id. at 100-106.

       Fourth, the utility argued that the Legislature granted the Public Utilities Commission

the power to regulate the utility; that the PUC approved the utility’s plan for the electric line

to cross the public rail; that the governmental entities waived their immunity by not

appearing before the PUC and objecting to the utility’s plan; and that the governmental



                                               9
entities could not collaterally attack the PUC’s approval of such plan in the condemnation

case. Rejecting these arguments, the Dallas Court held that the Legislature did not grant the

PUC the power to preempt the immunity of any governmental entities; that the governmental

entities did not waive their immunity by not participating in the regulatory proceeding before

the PUC; and that there was no collateral attack on the PUC’s order because the PUC could

not and did not grant an easement over the land of the governmental entities. Id. at 106-107.

       Based upon the foregoing rulings, the Dallas Court of Appeals held that the

governmental entities’ immunity barred the utility’s condemnation action against them and

dismissed the utility’s condemnation action with prejudice. Id. at 107. The utility then filed

a petition for review, which the Texas Supreme Court granted. Oncor Elec. Delivery Co. LLC

v. Dallas Area Rapid Transit, 369 S.W.3d 845 (Tex. 2012). While the utility's petition for

review was pending, the Legislature added Section 37.053(d) to the Utilities Code, which

provides: “For transmission facilities ordered or approved by the [PUC] ..., the rights

extended to an electric corporation under Section 181.004 [i.e., eminent domain] include all

public land, except land owned by the state, on which the commission has approved the

construction of the line.” Id. at 848.

       In its opinion, the Texas Supreme Court stated: “We assume, without deciding, that

governmental entities are immune from condemnation suits.” Id. at 849. The Supreme Court

then discussed how to analyze whether or not the statute granting the power of eminent

domain waives such immunity. The Court noted that “a waiver of governmental immunity



                                             10
must be clear and unambiguous.” Id. The Dallas Court of Appeals had addressed the issue

of whether T EX. U TIL. C ODE § 181.004 – which granted eminent domain power to the utility

– contained a clear and unambiguous waiver of the immunity of a condemnee that is a

governmental entity. The Supreme Court then explained its analysis of the issue:

              Were we to apply that standard to Section 181.004, our analysis
              would proceed along these lines. Section 181.004 confers on gas
              and electric utilities a power of eminent domain over the
              “property of any person or corporation.” Since the adoption of
              the Code Construction Act in 1967, the Legislature has
              instructed that in construing its codes, the word “person”
              includes the “government or governmental subdivision or
              agency” “unless the statute or context ... requires a different
              definition.” But in 2001, the Legislature added that “the use of
              ‘person’ ... to include governmental entities[ ] does not indicate
              legislative intent to waive sovereign immunity unless the context
              of the statute indicates no other reasonable construction.” These
              directives do not establish whether Section 181.004 waives
              immunity and shed no light at all on what the Legislature
              intended by its use of the word “person” in general statutes –
              not codes – enacted in 1911, when the predecessor to Section
              181.004 was first enacted. The court of appeals was not
              persuaded by [the utility’s] arguments that a utility's power to
              condemn public lands was recognized in early case law. And
              while the Authorities are “corporate bod[ies],”one may certainly
              question whether that statutory description of their capacity
              brings them within the entities whose property can be
              condemned by a gas or electric corporation. In short, whether
              Section 181.004 clearly and unambiguously waives a
              government landowner's immunity is a difficult question.

Id. 849-850. After noting that the appeal raised a “difficult question,” the Court stated “it is

one we need not answer here because our focus instead is on Section 37.053(d),” the new

statute passed while the appeal was pending in the Supreme Court. The Court then held that



                                              11
the new Section 37.053(d) clearly and unambiguously waived the immunity of the

governmental entities in an action filed by an electric utility and applied retroactively to the

governmental entities. As a result, the Supreme Court reversed the Court of Appeals and

remanded the case to the trial court. Id.

       D.     The statute granting the power of eminent domain to TRWD does not clearly
              and unambiguously waive the governmental immunity of Lazy W.

       In its petition for condemnation, TRWD alleged that it “has the power of eminent

domain under Texas Water Code § 49.222 to acquire land, property and easements by

condemnation in the manner provided in the Texas Property Code” (CR 2). Section 49.222

provides:

              (a) A district or water supply corporation may acquire by
              condemnation any land, easements, or other property inside or
              outside the district boundaries, or the boundaries of the
              certificated service area for a water supply corporation,
              necessary for water, sanitary sewer, storm drainage, or flood
              drainage or control purposes or for any other of its projects or
              purposes, and may elect to condemn either the fee simple title or
              a lesser property interest.

              (b) The right of eminent domain shall be exercised in the
              manner provided in Chapter 21, Property Code, except that a
              district or a water supply corporation shall not be required to
              give bond for appeal or bond for costs in any condemnation suit
              or other suit to which it is a party and shall not be required to
              deposit more than the amount of any award in any suit.

              (c) The power of eminent domain may not be used for the
              condemnation of land for the purpose of acquiring rights to
              underground water or of water or water rights.

T EX. W ATER C ODE § 49.222.

                                              12
       As noted above, “for the Legislature to waive sovereign immunity by enacting a

statute, it must do so by clear and unambiguous language.” Texas Parks & Wildlife Dep't v.

Garland, 313 S.W.3d 920, 925 (Tex. App. – Tyler 2010, no pet.). “In construing a statute,

our primary objective is to determine and give effect to the legislature's intent in enacting it.

In determining legislative intent, we examine the entire act, not just isolated portions of it.”

Id. at 924-925. “We start with the plain and common meaning of the statute's words. Unless

the statute is ambiguous, we determine the legislature's intent from the language of the statute

itself. We must presume that every word of the statute has been used for a purpose and that

every word excluded from the statute has been excluded for a purpose.” Id. at 925. “We

should not insert words into the statute except to give effect to clear legislative intent. We

presume that the legislature enacted the statute with complete knowledge of existing law and

with reference to it. We also may consider the object sought to be obtained by the statute and

the consequences of a particular construction.” Id.

       Applying these principles to T EX. W ATER C ODE § 49.222, nothing in the statute

clearly and unambiguously waives Lazy W’s governmental immunity as to a condemnation

action. The statute analyzed in Oncor Elec. Delivery Co. LLC v. Dallas Area Rapid Transit,

369 S.W.3d 845 (Tex. 2012), granted the power of eminent domain over the "property of any

person or corporation," and thereby raised an issue of whether the term “person” included

a governmental entity. Id. 849-850. By contrast, T EX. W ATER C ODE § 49.222 does not use

the term “person;” it only refers to the condemnation of “any land, easements, or other



                                               13
property.” Thus, § 49.222 does not even contain the only possible basis for waiver discussed

in Oncor Elec. Delivery Co. LLC. Furthermore, § 49.222 does not grant the power to

condemn “public land.” But even if it did refer to “public land,” it would not clearly and

unambiguously waive Lazy W’s governmental immunity because a “general provision that

... utilities can condemn public land might be construed merely to recognize a power that

cannot be exercised without a specific waiver of immunity, just as a statute authorizing a

governmental entity to ‘be sued’ does not waive immunity for all suits.” Oncor Elec.

Delivery Co. LLC v. Dallas Area Rapid Transit, 369 S.W.3d 845, 850 (Tex. 2012). In

summary, § 49.222 does not clearly and unambiguously waive Lazy W’s governmental

immunity to this condemnation case.

       E.     TRWD cites no authority for its argument that it can condemn the property of
              a governmental entity.

       TRWD argues it is “not unprecedented for one governmental entity to bring a

condemnation action against another governmental entity,” citing El Paso County v. City of

El Paso, 357 S.W.2d 783, 786 (Tex. Civ. App. – El Paso 1962, no writ). But El Paso County

is not even a condemnation case: it is a declaratory judgment action regarding a county’s

transfer of land to a city. In its petition, TRWD does not present any authority indicating that

the Legislature has waived Lazy W’s governmental immunity for this condemnation action.




                                              14
       F.       For the purpose of governmental immunity, this is a suit, not an administrative
                proceeding.

       TRWD agues that its action in the trial court is still in an “administrative phase” and

as a result, “there is no civil lawsuit and the trial court’s subject matter is not invoked.” 3 This

argument is without merit for four reasons. First, none of TRWD’s authorities for this

proposition involve governmental immunity. TRWD cites cases addressing the inability of

the trial court to interfere with the statutory authority of the commissioners and their award.

See, e.g., In re Energy Transfer Fuel, LP, 250 S.W.3d 178, 182 (Tex. App. – Tyler 2008,

orig. proc.) (trial court exceeded its jurisdiction when it entered a judgment containing

additional provisions not contained in the commissioners' award); In re State, 85 S.W.3d 871,

875 (Tex. App. – Tyler 2002, orig. proc.) (trial court was not authorized to award expenses

to special commissioners during the administrative phase of a condemnation proceeding);

Peak Pipeline Corp. v. Norton, 629 S.W.2d 185, 187 (Tex. App. – Tyler 1982, no writ) (trial

court could not grant plea in abatement based upon the pendency of another case and dismiss

the condemnation proceeding before the commissioners filed their award with the court).

TRWD relies upon a line of cases that address the inability of the trial court to interfere with

the actions of the commissioners before they file their award. None of the cases involves a

condemnee who has governmental immunity. None of TRWD’s cases even mentions

governmental immunity.




       3
           Petition at pg. 11.

                                                15
       Second, when a trial court appoints commissioners in a condemnation case, it does so

by exercising the court’s jurisdiction over the case. If the trial court does not possess and

exercise such jurisdiction, it cannot appoint commissioners. These elementary principles are

illustrated in Pinnacle Gas Treating, Inc. v. Read, 160 S.W.3d 564 (Tex. 2005). A pipeline

filed eight condemnation cases in Leon County. Pursuant to T EX. P ROP. C ODE § 21.013(d),

the district clerk distributed the eight cases among the three courts serving the county: the

12th, 87th, and 278th district courts. But only one of the district courts – the 87th – signed

all the orders appointing special commissioners in all eight cases. Thereafter, the

commissioners in a case assigned to the 278th district court rendered their award, the pipeline

filed its notice of deposit, the 87th district court granted a writ of possession to the pipeline

for the easement, and the pipeline filed an objection to the commissioners’ award. Id. at 565.

The pipeline filed a motion for partial summary judgment in the 278th district court to

establish that it was entitled to condemn the property as a matter of law. In response, the

landowners filed a plea to the jurisdiction and a motion to dismiss, arguing that the 87th

district court never had jurisdiction to appoint the commissioners because the case was

assigned to the 278th district court, and the 278th district court never transferred the case to

or exchanged benches with the 87th district court, which had appointed the commissioners.

Id. at 565-566. Agreeing with the landowners, the Court of Appeals held that the 87th

district court lacked jurisdiction to appoint the commissioners because the 278th district court

never exchanged benches or transferred the case. Id. at 566.



                                               16
       The Supreme Court disagreed and held that both district courts had concurrent

jurisdiction over the pipeline’s eminent domain case; the Texas Constitution allowed district

judges hold court for each other; and that no formal order was needed for an exchange or

transfer to occur. The Supreme Court held that the judge of the 87th district court had

“jurisdiction irrespective of whether his appointment of the commissioners was erroneous.”

Id. at 566.

       By asking the trial court to appoint commissioners before ruling on the plea to the

jurisdiction, TRWD is asking the trial court to exercise its threshold subject matter

jurisdiction in a condemnation case to appoint commissioners. But “immunity from suit

deprives a trial court of jurisdiction.” City of Houston v. Williams, 353 S.W.3d 128, 133

(Tex.2011). Lazy W’s governmental immunity negates the trial court’s threshold jurisdiction

that it must have to take the first step of appointing commissioners, a threshold jurisdiction

the Supreme Court recognized in Pinnacle Gas Treating, Inc. v. Read. If the trial court does

not have and exercise such threshold subject matter jurisdiction, it cannot appoint

commissioners. See Benat v. Dallas Cnty., 266 S.W. 539, 540 (Tex. Civ. App. – Dallas 1924,

writ ref’d) (petition filed by a condemnor that did not have the power of eminent domain

conferred no jurisdiction on the trial court to appoint commissioners). If TRWD had filed

its petition in the “High Court of the Republic of Texas,” would such “court” then been able

to appoint commissioners under T EX. P ROP. C ODE C H. 21 merely because TRWD filed its

petition in such “court”? Of course not. The trial court properly decided to rule on Lazy W’s



                                             17
plea to the jurisdiction and determine whether or not it has the necessary jurisdiction to

appoint commissioners before actually taking the step of appointing commissioners.

       Third, the Supreme Court has instructed trial courts to rule on a plea to the jurisdiction

of a governmental entity before taking any other action in the case: “The trial court must

determine at its earliest opportunity whether it has the constitutional or statutory authority to

decide the case before allowing the litigation to proceed.” Texas Dep't of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The rationale for this mandate is obvious.

“When the court that renders a judgment had no jurisdiction ... the judgment is void. A void

judgment is an absolute nullity and has no legal force or effect.” In re Energy Transfer Fuel,

LP, 250 S.W.3d 178, 181 (Tex. App. – Tyler 2008, orig. proc.). If Lazy W’s governmental

immunity negates the trial court’s jurisdiction to appoint commissioners, but the trial court

nonetheless were to appoint commissioners, who then render an award, requiring Lazy W to

object to the award, the entire proceeding would be void, resulting in a complete waste of

time and resources. The Supreme Court’s mandate that the trial court must first rule on a plea

to jurisdiction before taking any other action is designed to avoid such a waste of time and

resources.

       Fourth, regardless of TRWD’s characterization of the status of the action in the trial

court as an “administrative,” it is a “suit” for purposes of governmental immunity. A “suit”

is “any proceeding in a court of justice by which an individual pursues that remedy in a court

of justice which the law affords him.” Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 564



                                               18
(Tex. 2014). Section 49.222 – the statutory basis for TRWD’s power of eminent domain –

expressly refers to this action filed against Lazy W as a “suit.” T EX . W ATER C ODE §

49.222(b) (“a district or a water supply corporation shall not be required to give bond for

appeal or bond for costs in any condemnation suit or other suit to which it is a party ....”).

Section 49.222(b) also says the “right of eminent domain shall be exercised in the manner

provided in Chapter 21, Property Code.” Chapter 21 in turn refers to condemnation actions

nineteen times as “cases” and twice as “suits.”

       In City of Sachse, Texas v. Kansas City S., 564 F. Supp. 2d 649, 653 (E.D. Tex. 2008),

a city filed a condemnation proceeding against a railroad and the trial court appointed

commissioners. Before the commissioners rendered an award, however, the railroad removed

the condemnation case to federal court. The city filed a motion to remand, arguing that its

condemnation proceeding was still in its “administrative phase,” and therefore was not a

“case” subject to removal. Rejecting the city’s argument, the District Court held that the

“state court proceeding, even at its administrative stage, is a ‘civil action brought in a State

court’” within the scope of the federal removal statute. Id. at 654-655. Cf. Harris Cnty.,

Texas v. Union Pac. R. Co., 807 F. Supp. 2d 624, 628 (S.D. Tex. 2011), on recon., 2012 WL

4339075 (S.D. Tex. 2012).

       In short, TRWD’s condemnation action against Lazy W in the trial court is a “suit”

for the purpose of governmental immunity.




                                              19
       G.     Even if the proceeding in the trial court is in its “administrative phase,” Lazy
              W’s governmental immunity still applies.

       In reality, however, it makes no difference whether the action in the court below is

characterized as an “administrative phase” or as a “suit.” Governmental immunity applies

with equal force to both. For example, in Federal Maritime Com'n v. South Carolina State

Ports Authority, 122 S. Ct. 1864 (2002), a cruise company filed a complaint with a federal

agency (the Federal Maritime Commission) contending that a state agency (the South

Carolina State Ports Authority) violated federal law when the state agency denied the cruise

company permission to berth its cruise ship at the state agency’s port. The Administrative

Law Judge found that the state agency was entitled to sovereign immunity and dismissed the

complaint.

       In the United States Supreme Court, the federal agency argued that “sovereign

immunity only shields States from exercises of ‘judicial power’ and [agency] adjudications

are not judicial proceedings.” Id. at 1871. The Court disagreed, noting that an administrative

proceeding before the federal agency “walks, talks, and squawks very much like a lawsuit.”

Id. at 1873. The Court noted that a “State seeking to contest the merits of a complaint filed

against it by a private party must defend itself in front of the [agency] or substantially

compromise its ability to defend itself at all.” Id. at 1875. The Court held that state sovereign

immunity bars such an adjudicative proceeding before a federal agency against a state

agency. Id. at 1868.




                                               20
       H.      If the Court orders the trial court to appoint commissioners, Lazy W will lose
               the fundamental protection afforded by governmental immunity.

       In this condemnation case, once the trial court appoints commissioners, they must

“promptly schedule a hearing” to occur no sooner than twenty days after their appointment.

T EX. P ROP. C ODE § 21.015(a). The commissioners can “compel the attendance of witnesses

and the production of testimony, administer oaths, and punish for contempt in the same

manner as the county judge.” Id. § 21.014. Upon the conclusion of the hearing, the

commissioners render a written award and “assess damages ... according to the evidence

presented at the hearing.” Id. § 21.042(a). TRWD can then obtain immediate possession of

Lazy W’s property by depositing the amount of the award with the court. Id. § 21.021. Lazy

W would then be forced to file objections to the commissioners’ award, and the case would

proceed to trial as any other civil case. Id. § 21.018. Importantly, by making the deposit of

the award with the court, TRWD would remain in possession of Lazy W’s land throughout

the pendency of the litigation until it is concluded. Id. § 21.021.

       After the conclusion of the litigation, if Lazy W prevails and establishes that its

governmental immunity barred this action, the ability of Lazy W to recover damages from

TRWD is uncertain. Although § 21.044 appears to provide a remedy to Lazy W, courts have

construed this remedy narrowly. Houston Lighting & Power Co. v. Klein Indep. Sch. Dist.,

739 S.W.2d 508, 518 (Tex. App. – Houston [14th Dist] 1987, writ denied) (“Texas courts

have construed this language as limiting condemnation damages to the market value of the

property itself.”).

                                              21
       TRWD is asking this Court to hold that before ruling on Lazy W’s plea to the

jurisdiction, the trial court must appoint commissioners, allow the commissioners to make

their award, allow TRWD to deposit the award with the trial court, and allow TRWD to take

possession of Lazy W’s property until the conclusion of this litigation. If the Court adopts

TRWD’s position, then –

       •      TRWD could file a petition for condemnation against the State of Texas, take
              possession of the Alamo,4 and retain possession until the conclusion of the
              litigation several years later.

       •      TRWD could file a petition for condemnation against the Cities of Dallas and
              Fort Worth, take possession of the Dallas/Fort Worth International Airport,
              and retain possession until the conclusion of the litigation several years later.

       •      TRWD could file a petition for condemnation against Smith County, take
              possession of the offices and courtroom of the Twelfth Court of Appeals, and
              retain possession until the conclusion of the litigation several years later.

       According to TRWD, the trial court cannot rule on a plea to the jurisdiction before

TRWD takes possession of Lazy W’s property. The fundamental purpose of governmental

immunity is to protect government property. Tooke v. City of Mexia, 197 S.W.3d 325, 331-32

(Tex. 2006); Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.

2002). Adopting TRWD’s position will destroy the fundamental purpose of governmental

immunity when public property is at issue. Adopting TRWD’s position will also have a far-

reaching impact because 9,245 entities in Texas claim to possess the power of eminent

domain, including governmental entities (such as municipalities, utility districts, counties,

       4
        TRWD can condemn and take property "inside or outside the district boundaries" of TRWD
under TEX . WATER CODE § 49.222(a),

                                             22
water districts, housing authorities, economic development corporations and hospital

districts) and non-governmental entities (such as water supply corporations, oil, gas and

pipeline companies, and electric cooperatives).5 Adopting TRWD’s position will enable each

of these 9,245 public and private entities to file a condemnation case and take possession of

the property of a governmental entity before the trial court can rule on the governmental

entity’s plea to the jurisdiction.

       By contrast, allowing the trial court to rule on Lazy W’s plea to the jurisdiction before

it appoints commissioners will preserve the protection of governmental immunity and

promote judicial economy. The trial court’s grant or denial of Lazy W’s plea to the

jurisdiction will be immediately appealable to this Court. T EX. C IV. P RAC. & R EM. C ODE §

51.014. On one hand, if the appellate courts rule that the Legislature has not waived Lazy

W’s governmental immunity for this condemnation action, then the matter is concluded. On

the other hand, if the appellate courts hold that the Legislature has waived Lazy W’s

immunity, then the trial court can appoint commissioners, the commissioners can make their

award, TRWD can deposit the award with the court, and TRWD can take possession of Lazy

W’s property until the conclusion of the litigation.




       5
           http://window.texas.gov/specialrpt/eminent_domain/index.html

                                               23
       In short, granting TRWD’s request for mandamus relief will give TRWD what it

ultimately seeks in this case – possession of Lazy W’s land – without affording Lazy W the

opportunity to have the trial court rule on its governmental immunity. Such a result would

deny Lazy W the fundamental protection afforded by its governmental immunity.

                                          PRAYER

       As explained above, TRWD is not entitled to mandamus relief because TRWD has

an adequate remedy of an accelerated interlocutory appeal under T EX. C IV. P RAC. & R EM .

C ODE § 51.014. The Court should issue an order dismissing this original proceeding and

instructing the trial court to rule on Lazy W’s plea to the jurisdiction before taking any other

action. In the alternative, if the Court considers TRWD’s petition, the Court should deny

TRWD’s request for a writ of mandamus because the trial court must rule on Lazy W’s plea

to the jurisdiction before it can take any other action in this case.

                                            Respectfully submitted,

                                            M. KEITH DOLLAHITE, P.C.
                                            5457 Donnybrook Avenue
                                            Tyler, Texas 75701
                                            (903) 581-2110
                                            (903) 581-2113 (Facsimile)
                                            keith@mkdlaw.us

                                                  /s/ Keith Dollahite
                                            By:_________________________________
                                                  M. Keith Dollahite
                                                  State Bar No. 05958550




                                              24
EVAN LANE (VAN) SHAW
State Bar No. 18140500
van@shawlaw.net
COLLEN R. MEYER
State Bar No. 24074709
collen@shawlaw.net
LAW OFFICES OF VAN SHAW
2723 Fairmount
Dallas, Texas 75201
(214) 754-7110 (Telephone)
(214) 754-7115 (Facsimile)

MARTIN BENNETT
State Bar No. 00795037
mbennett@ksbpc.com
KUGLE, SKELTON & BENNETT, P.C.
130 E. Corsicana, Suite 302
Athens, Texas 75751
(903) 675-5151 (Telephone)
(903) 677-4950 (Facsimile)

ROBERT HAIMAN
State Bar No. 00796690
roberthaiman@remingtonhotels.com
14185 Dallas Parkway, Suite 1150
Dallas, Texas 75254
(972) 778-9312 (Telephone)
(972) 392-1929 (Facsimile)




 25
                  CERTIFICATE FOR FACTUAL STATEMENTS

      Pursuant to TEX. R. APP. P. 52.3(j) and 52.4, I certify that I have reviewed the
response and concluded that every factual statement in the response is supported by
competent evidence included in the appendix or record.

                                                /s/ Keith Dollahite
                                           ______________________________________


                          CERTIFICATE OF COMPLIANCE

       Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document contains 6,345words
based on the word count of the computer program used to prepare the document, excluding
the sections not counted under TEX. R. APP. P. 9.4(i)(1), which is below the maximum of
15,000 words in TEX. R. APP. P. 9.4(i)(2).

                                                /s/ Keith Dollahite
                                           ______________________________________




                                             26
                            CERTIFICATE OF SERVICE

       A copy of this document was served by email to the parties listed below on January
5, 2015.

                                               /s/ Keith Dollahite
                                         _________________________________________


 Hal R. Ray, Jr.                             Christopher D. Tinsley
 Michael L. Atchley                          117 E. Tyler Street
 500 West 7th Street, Suite 600              Athens, Texas 75751
 Fort Worth, Texas 76102-4995
                                             Monty Bennett
 Tom Henson                                  14185 Dallas Parkway, Suite 1100
 Ramey & Flock, P.C.                         Dallas, Texas 75254
 100 East Ferguson, Suite 500
 Tyler, Texas 75702                          Honorable Joe Clayton
                                             100 E. Ferguson, Suite 1114
 Jeffrey L. Coe                              Tyler, Texas 75702
 Law Office of Jeffrey L. Coe
 P.O. Box 1157
 Palestine, Texas 75802-1157




                                           27
