







Reversed and Remanded and Majority and Concurring Opinions filed May 12,
2005








Reversed and Remanded and Majority and Concurring Opinions
filed May 12, 2005.
 
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-03-01311-CV
_______________
 
THE BURLINGTON NORTHERN
AND
SANTA FE RAILWAY COMPANY, Appellant
 
V.
 
THE CITY OF HOUSTON, Appellee
_________________________________________________________
 
On Appeal from the
County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 789,496
_________________________________________________________
 
C O N C U R R I N G  
O P I N I O N
 




The
dismissal in this case could only properly be granted and affirmed based on a
jurisdictional issue, such as governmental immunity from suit.  Preemption is not such an issue, either
generally,[1]or
in this particular case, because the county court will have subject matter
jurisdiction over the condemnation action, even if some portions of the
condemnation statute are preempted. 
Beyond recognizing that the dismissal cannot properly be affirmed on the
preemption issue in any event (because it is not jurisdictional), any ruling in
this appeal on preemption would go beyond the jurisdictional issues governing
the dismissal to reach the merits of the underlying claims and thus be an advisory
opinion which we have no jurisdiction to issue.[2]  Therefore, our decision in this appeal should
not address the preemption issue on the merits.
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Opinion filed May 12, 2005.
Panel consists of
Justices Yates, Edelman, and Guzman. 
(Yates, J., majority.)
 
 




[1]           See,
e.g., Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 (Tex. 2005).


[2]           See,
e.g., McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex. 2001).


