
In The


Court of Appeals


Ninth District of Texas at Beaumont

____________________


NO. 09-07-560 CV

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THE STATE OF TEXAS AND THE TEXAS A&M UNIVERSITY SYSTEM,

											Appellants

V.


MONTGOMERY COUNTY, TEXAS, Appellee




On Appeal from the County Court at Law No. 4
Montgomery County, Texas

Trial Cause No. 07-07-06965-CV




OPINION


	The State of Texas and The Texas A&M University System appeal the denial of their
plea to the jurisdiction in this eminent domain proceeding initiated by Montgomery County,
Texas. (1) A contract between Montgomery County and the Texas Department of
Transportation requires Montgomery County to obtain and transfer to the State the fee simple
title to a strip of land for a highway expansion project.  The land in question runs through
property managed by the Texas Forest System, which is a service of TAMUS. (2)  In four
issues, the appellants contend: (1) the State and its agencies cannot be sued in a
condemnation action absent a waiver of sovereign immunity; (2) the Texas Education Code
withholds legislative consent to sue the State to condemn State Forest land; (3) the
Transportation Code precludes a judgment against a state agency to condemn state property
when the property will be used for highway purposes and placed in the State's name; and (4)
filing objections to the special commissioners' award with a plea to the jurisdiction and
alternative request for compensation damages does not waive the State's immunity.  We
affirm the trial court's order denying the plea to the jurisdiction.
Issue One

	 Montgomery County and the Texas Department of Transportation entered into a pass-through toll agreement to construct improvements to FM 1488.  Such agreements are
authorized by statute.  See Tex. Transp. Code Ann. § 222.104 (Vernon Supp. 2007).  To
fulfill its obligations under the agreement, Montgomery County seeks to condemn fee simple
title to land located within a Texas State Forest owned by the State, to construct upon that
land improvements for the State's highway system, and to place title to the improved land
back in the State. (3)  The appellants contend their fellow unit of state government cannot
exercise its right of eminent domain because the Legislature has not specifically authorized
eminent domain proceedings against the State and TAMUS.  As authority, they rely upon
Burlington N. & Santa Fe Ry. Co. v. City of Houston, 171 S.W.3d 240, 245-46 (Tex. App.--Houston [14th Dist.] 2005, no pet.).
	As part of a federally-approved rail line project, the Burlington railroad brought a
condemnation action against a municipality.  Id. at 242.  The trial court found that the city's
sovereign immunity had been waived but the railroad did not have the right to take the
property under state law.  Id. at 245.  On appeal, the railroad argued the city's sovereign
immunity was waived by combined effect of the statute that grants a railroad the right to
condemn "any real estate," the statute that states a home-rule municipality "may plead and
be impleaded in any court," and the city's charter, which stated the city may "sue and be
sued."  Id. at 245-46.  The appellate court decided immunity was waived by the "plead and
be impleaded" statutory language and did not reach whether the statute granting a right to
condemn "any real estate" waived the city's sovereign immunity. (4) Id.  The appellate court
went on to hold that federal law preempted state law on paramount public use.  Id. at 248-49. 
Thus, the Burlington court did not decide whether the grant of eminent domain power over
public property created an express waiver of the sovereign immunity of the governmental
entity from which the property is acquired.
	In determining whether particular statutory language affirmatively and unambiguously
waives sovereign immunity, the import of the statutory language must be ascertained in the
context in which it occurs.  See Tooke v. City of Mexia, 197 S.W.3d 325, 329 (Tex. 2006);
Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2007).  The right of eminent domain
granted to a county by the legislature "extends to public or private land, but not to land used
for cemetery purposes."  Tex. Loc. Gov't Code Ann. § 261.001(b) (Vernon 2005).  By
extending the county's condemnation authority to public lands not used for cemetery
purposes, the legislature clearly and unambiguously permits the counties to proceed against 
other governmental entities using that public land.
Issue Two

	The appellants argue the Legislature has withheld consent to Montgomery County's
condemnation suit.  First, they challenge Montgomery County's reliance on Chapters 251 and
284 of the Transportation Code.  "A county may exercise the power of eminent domain in
a municipality with the prior consent of the governing body of the municipality to condemn
and acquire real property, a right-of-way, or an easement in public or private real property
that the commissioners court determines is necessary or convenient to any road that forms
or will form a connecting link in the county road system or in a state highway."  Tex.
Transp. Code Ann. § 251.101(a) (Vernon 1999).  Because  Montgomery County is not
acquiring public land from a municipality, we agree that Section 251.101 does not apply in
this case.  Id.
	The appellants contend Chapter 284 of the Transportation Code withholds eminent
domain authority from the county.  Section 284.061(b) does not mention public property. 
Tex. Transp. Code Ann. § 284.061(b) (Vernon Supp. 2007) ("A county may acquire by
eminent domain property to use in or useful for a project under this chapter.").  Section
284.061(d) refers to property owned by the state but does not mention eminent domain.  Tex.
Transp. Code Ann. § 284.061(d) (Vernon Supp. 2007) ("A county has full easements and
rights-of-way through, across, under, and over any property owned by this state that are
necessary or convenient to construct, acquire, or efficiently operate a project under this
chapter.").  The appellants contend this statute does not authorize the exercise of eminent
domain to acquire public land but grants easements and rights-of-way instead.  As a more 
specific statute, they argue, Transportation Code § 284.061(d) controls over Local 
Government Code § 261.001.  See Tex. Loc. Gov't Code Ann. § 261.001 ("A county may
exercise the right of eminent domain to condemn and acquire land, an easement in land, or
a right-of-way if the acquisition is necessary for the construction of a jail, courthouse,
hospital, or library, or for another public purpose authorized by law. . . .  The right of eminent
domain conferred by this section extends to public or private land, but not to land used for
cemetery  purposes.").  According  to  the  appellants,  by  enacting  Transportation  Code 
§ 284.061, "[t]he Legislature has already exercised its plenary authority over state-owned
property to grant the County an easement over the Jones State Forest parcel for the FM 1488
highway-improvement project."  By granting an easement, they argue, the Legislature has
withheld permission for a condemnation suit.
	In addressing this argument, we must determine whether the statutes at issue actually
conflict.  "If a general provision conflicts with a special or local provision, the provisions
shall  be  construed,  if  possible,  so  that  effect  is  given  to  both."  Tex.  Gov't  Code
Ann. § 311.026(a) (Vernon 2005).  Here, the statute contained in the Local Government
Code grants a broad general power to condemn property already in public use.  Tex. Loc.
Gov't Code Ann. § 261.001.  The statute in the Transportation Code addresses the
acquisition of property for highway projects.  Tex. Transp. Code Ann. § 284.061.  By the
appellants' own admission, Section 284.061(d) grants a blanket permission to use state
property for highway projects.  The plain purpose of subsection (d) of Section 284.061 is to
make it easier for counties to obtain state land, not make it more difficult.  That subsection
grants a county "full easements and rights-of-way" over any property, without limitation, not
only if it is necessary but also if it is convenient to place the project on state land.  See id. 
The Transportation Code does not limit the rights already granted by the Local Government
Code; rather, it provides additional flexibility for the county's project.  Thus, Transportation
Code § 284.061 does not withhold the Legislature's consent for Montgomery County to
exercise eminent domain authority to acquire the property for the pass-through toll project.
	Next, the appellants argue that the Legislature has withheld consent to the alienation
of state forest land without its specific approval.  The Education Code addresses the
acquisition of land for forestry purposes.  Tex. Educ. Code Ann. § 88.108 (Vernon 2002). 
The Education Code also permits TAMUS to divest itself of state forest land.  Tex. Educ.
Code Ann. § 88.108(e) ("The board may sell, exchange, or lease state forest land under its
jurisdiction when in its judgment it is advantageous to the state to do so in the highest orderly
development and management of state forests.  However, no sale or exchange of any such
land belonging to the state or the university shall be made until the sale or exchange is
authorized by the legislature.").  Id.  The appellants argue Montgomery County's
condemnation proceeding is a "sale" for purposes of Section 88.108(e) of the Education
Code.  We must consider the object sought to be attained by the statute in question and the
common law and former statutory provisions.  Tex. Gov't Code Ann. § 311.023 (Vernon
2005).  Education Code § 88.108(e) describes and limits the power of the TAMUS board. 
That sub-section speaks only to transactions in which the TAMUS board divests itself of
state forest land.  See Tex. Educ. Code Ann. § 88.108(e).  It protects state forests from sale
or exchange without legislative authorization.  However, as appellant concedes, with respect
to the FM 1488 highway-improvement project, the Legislature has exercised its authority
over state-owned property to grant Montgomery County "full easements and rights-of-way
through,  across,  under,  and  over"  the  state  forest  parcel.   See  Tex. Transp. Code  Ann.
§ 284.061(d) (Vernon Supp. 2007).   The term "right-of-way" in § 284.061(d) means more
than simply a right of passage over the land.  Here it refers to the land itself.  The statute
authorizes full use of the state land as a highway.  See BLACK'S LAW DICTIONARY, at
1351 (8th ed. 2004).  The change in use of  the  land  in  this  case  from  a  forest  to  a 
highway  is  not  barred  by  Education  Code § 88.108(e), because the Legislature has
authorized full use of the land for this highway project.  The narrow issue presented here is
whether Montgomery County, in addition to full use of the land for a highway, and pursuant
to the permission granted to it by the Legislature under Chapter 284, may exercise its eminent
domain power to take fee simple title to the land in its name as required by the state's
contract.
	The exercise of eminent domain authority between units of state government is
governed by the doctrine of paramount public importance.  
	[T]he law does not authorize the condemnation of property which has already
been dedicated to a public use, when such condemnation would practically
destroy the use to which it has been devoted.  No express authority is given by
our statutes to condemn such property, and the authority cannot be implied
from the general power conferred by the law unless the necessity be so great
as to make the new enterprise of paramount importance to the public, and it
cannot be practically accomplished in any other way.

See Sabine & E.T. Ry. Co. v. Gulf & I. Ry. Co. of Tex., 92 Tex. 162, 46 S.W. 784, 786 (1898).

The question of whether the doctrine of paramount public importance prevents one
governmental entity from condemning public property already dedicated to public use by
another governmental entity does not implicate the power of one unit to bring the other to
court; rather, the issue is resolved by the commissioners in the condemnation suit.  See id.
	The appellants argue Section 85.26(a) of the Education Code also supports their
position that the trial court lacks jurisdiction over the county's condemnation suit.  See Tex.
Educ. Code Ann. § 85.26 (Vernon 2002).  Again, we consider the purpose of the statutes
involved and give effect to both where possible.  See Tex. Gov't Code Ann. §§ 311.021,
311.023.  Section 85.26(a) provides that the TAMUS board may grant easements for rights-of-way to any county in the state on any lands belonging to the state and under the control
of the TAMUS board.  Tex. Educ. Code Ann. § 85.26.  This statute provides a means for
obtaining an easement and requires that a party obtain an easement before an agency may
construct improvements on land under the control of the board.  See Tex. Educ. Code Ann.
§ 85.26(e).  Condemnation is a separate procedure.  See Tex. Prop. Code Ann. §§ 21.001-21.065 (Vernon 2000, 2004, & Supp. 2007).  The fact that the Legislature provided an
additional method for obtaining an easement does not mean that the Legislature intended to
restrict the eminent domain power granted elsewhere.
Issue Three

	Next, the appellants contend that the General Land Office has exclusive jurisdiction. 
They rely upon Section 203.058 of the Transportation Code.  See Tex. Transp. Code Ann.
§ 203.058(e) (Vernon 1999) ("If the department and the state agency are unable to agree on
adequate compensation, the General Land Office shall determine the fair, equitable, and
realistic compensation to be paid.").  On its face, this statute applies to property acquired 
from a public agency by TxDOT.  Id.  The appellants argue that Section 203.058 applies
because TxDOT will be the ultimate consumer of the improved highway.  The compensation
paid by TxDOT will be determined by the pass-through toll agreement between Montgomery
County and TxDOT pursuant to Section 222.104.  See Tex. Transp. Code Ann. § 222.104
(Vernon Supp. 2007).  Section 203.058 does not give the General Land Office jurisdiction
over condemnation compensation disputes between TAMUS and Montgomery County under
the facts of this case.

Issue Four

	Finally, the appellants contend that their objections to the special commissioners'
award did not affirmatively waive sovereign immunity.  Sovereign immunity will not bar
claims in a case where a governmental entity has joined into the litigation process by
asserting its own claims for affirmative relief.  Reata Constr. Corp. v. City of Dallas, 197
S.W.3d 371, 376-77 (Tex. 2006).  "The Texas eminent-domain scheme is a two-part process
that begins with an administrative proceeding followed, if necessary, by a judicial one."  City
of Tyler v. Beck, 196 S.W.3d 784, 786 (Tex. 2006).  Judicial condemnation proceedings
commence with the filing of an objection to the award.  Id.  The appellants argue they did not
invoke the judicial process when they filed their objection to the award because their primary
complaint concerned their plea to the jurisdiction.  Although the appellants did request more
compensation than the amount awarded by the commissioners, that request was contingent
upon the denial of their pleas to the jurisdiction.  See Ray Ferguson Interests, Inc. v. Harris
County Sports & Convention Corp., 169 S.W.3d 18, 26 (Tex. App.--Houston [1st Dist.]
2004, no pet.) ("Alternatively, the governmental entity could first file its jurisdictional plea,
then file its 'compulsory' counterclaim for affirmative relief expressly subject to its
jurisdictional plea and contingent upon the plea's denial.").  In this case, however, the trial
court did not err when it denied the plea to the jurisdiction on the merits of the plea. 
Accordingly, Montgomery County need not rely on the appellants' objections to the award
in order to establish jurisdiction in the trial court.
	We affirm the trial court's order denying the plea to the jurisdiction.
	AFFIRMED.

 

							______________________________
								STEVE McKEITHEN
								         Chief Justice

Submitted on April 17, 2008
Opinion Delivered July 31, 2008

Before McKeithen, C.J., Kreger and Horton, JJ.
1.  In this opinion, we refer to the appellants collectively and refer to the Texas A&M
University System individually as "TAMUS." Although the Texas Department of
Transportation ("TxDOT") was a party to the pass-through toll agreement, the State's
participation in this litigation arises from holding record title to the real property rather than
through its state highway projects or as a political subdivision of state government.
2.  See Tex. Educ. Code Ann. § 88.001 (Vernon 2002). 
3.  At this juncture, the careful reader will think we have misconstrued something.  We
have not.  Montgomery County is seeking to condemn property owned by the State, take fee
simple ownership of that property, only to return the property to the State once the
construction project is completed.  The appellants refer to this as an "Alice-in-Wonderland
scenario" and the appellee calls A&M "the White Rabbit."  References from the masterworks
of Lewis Carroll, along with those of L. Frank Baum and Mark Twain, are often employed
in appellate briefs, seldom for any useful purpose and usually in a place where citation to
precedent would be expected and preferred.  For once, however, the literary analogy seems
appropriate.
4.  After Burlington was decided, the Supreme Court held that "sue and be sued" and
"plead and be impleaded" clauses in statutes do not create an express waiver of immunity. 
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006).
