                                                                                    ACCEPTED
                                                                               14-14-00823-cv
                                                                 FOURTEENTH COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                           3/9/2015 4:12:59 PM
                                                                          CHRISTOPHER PRINE
                                                                                        CLERK

                        NO. 14-14-00823-CV
__________________________________________________________________
                                                         FILED IN
                                                  14th COURT OF APPEALS
    IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT
                                                     HOUSTON, TEXAS
                       AT HOUSTON, TEXAS           3/9/2015 4:12:59 PM
__________________________________________________________________
                                                  CHRISTOPHER A. PRINE
                                                           Clerk

 TEXAS TRANSPORTATION COMMISSION AND TED HOUGHTON, IN
        HIS OFFICIAL CAPACITY AS CHAIR OF THE TEXAS
                 TRANSPORTATION COMMISSION,
                                              Appellants,
                                    V.
                      CITY OF JERSEY VILLAGE,
                                              Appellee.
__________________________________________________________________
                  On Appeal from the 165th District Court
              of Harris County, Texas; Cause No. 2012-59338

     REPLY BRIEF OF APPELLANTS TEXAS TRANSPORTATION
 COMMISSION AND TED HOUGHTON, IN HIS OFFICIAL CAPACITY
    AS CHAIR OF THE TEXAS TRANSPORTATION COMMISSION
__________________________________________________________________

KEN PAXTON                         ANTHONY G. BROCATO, JR.
Attorney General of Texas          Assistant Attorney General
                                   State Bar No. 03039001
CHARLES E. ROY                     anthony.brocato@texasattorneygeneral.gov
First Assistant Attorney General   SUSAN DESMARAIS BONNEN
                                   Assistant Attorney General
JAMES E. DAVIS                     State Bar No. 05776725
Deputy Attorney General for        susan.bonnen@texasattorneygeneral.gov
Civil Litigation                   Transportation Division
                                   P. O. Box 12548
RANDALL K. HILL                    Austin, Texas 78711-2548
Assistant Attorney General         Telephone: (512) 463-2004
Chief, Transportation Division     Fax Number: (512) 472-3855

                                   COUNSEL FOR APPELLANTS

                     ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS
                                                                                                              Page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

RESPONSE TO THE CITY’S STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . 2

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

         I.       The City’s declaratory judgment claims are barred by the State’s
                  sovereign immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                  A.       The City’s general claim for declaratory relief is barred by
                           sovereign immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                           1.       The City’s claim for general declaration of rights is barred
                                    by sovereign immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . 7

                           2.       The City is seeking monetary relief, which is barred by
                                    sovereign immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                           3.       The City is seeking to control State action and thus, its
                                    claims as barred by sovereign immunity. . . . . . . . . . . . 11

                  B.       The City’s alleged ultra vires claims are barred by sovereign
                           immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                           1.       The City’s alleged ultra vires claims against the Texas
                                    Transportation Commission are barred by sovereign
                                    immunity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                           2.       The City’s alleged ultra vires claims against Houghton are
                                    barred by sovereign immunity. . . . . . . . . . . . . . . . . . . . 12

                                    a.       Section 203.092 must be strictly construed.. . . . 12



                                                          ii
                                     b.       Section 203.092 does not require reimbursement for
                                              replacement easements. . . . . . . . . . . . . . . . . . . . 14

                                              i.        The plain language of § 203.092 does not
                                                        require reimbursement for replacement
                                                        easements.. . . . . . . . . . . . . . . . . . . . . . . . . 14

                                              ii.       Reimbursement for replacement easements is
                                                        not property attributable to relocation.. . . 16

                                              iii.      The City does not have a compensable
                                                        interest in the land occupied by the facilities
                                                        to be relocated. . . . . . . . . . . . . . . . . . . . . . 18

                                     c.       Construction of Section 203.092 as requiring
                                              reimbursement for replacement easements would
                                              cause the State to pay betterment costs in violation
                                              of the Texas Constitution.. . . . . . . . . . . . . . . . . . 21

         II.      The City’s claim under Article 1, Section 17 of the Texas Constitution
                  is barred by the State’s sovereign immunity. . . . . . . . . . . . . . . . . . . 22

         III.     The City’s claims regarding Segment 7 are not ripe. . . . . . . . . . . . . 23

         IV.      The City’s claim for attorneys fees is barred by the State’s sovereign
                  immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

APPENDIX

A.       Grizzard easement




                                                           iii
                                  INDEX OF AUTHORITIES


Cases                                                                                             Page

Anderson v. Truelove, 446 S.W.3d 87
     (Tex. App.—Houston [1st Dist.] 2014, no pet.). . . . . . . . . . . . . . . . . . . . . . 22

Argyle Indep. Sch. Dist. v. Wolf, 234 S.W.3d 229
      (Tex. App.—Fort Worth 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009). . . . 7, 8, 9, 10, 11, 21,24

City of Grand Prairie v. Am. Tel. & Tel. Co.,
      405 F.2d 1144 (5th Cir. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

City of Houston v. Williams, 216 S.W.3d 827 (Tex. 2007). . . . . . . . . . . . . . . . . . 11

City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex. 1970) . . . . . . . . . . . . . . . . . . 20

City of San Antonio v. TPLP Office Park Props.,
      218 S.W.3d 60 (Tex. 2007)(per curium) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770 (Tex. 2006) . . . . 20

Edwards v. Kaye, 9 S.W.3d 310
     (Tex. App—Houston [14th Dist.] 1999, pet. denied).. . . . . . . . . . . . . . . . . 16

Elledge v. Friberg–Cooper Water Supply Corp.,
      240 S.W.3d 869 (Tex. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Harris Cnty. Flood Control Dist. v. Shell Pipe Line Corp.,
      591 S.W.2d 798 (Tex. 1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468 (Tex. 2012) . . . . . . . . . 23

Houston Lighting & Power Co. v. State, 925 S.W.2d 312
     (Tex. App.—Houston [14th Dist.] 1996, writ denied). . . . . . . . . . . . . . . . . 19


                                                    iv
Hubert v. Davis, 170 S.W.3d 706 (Tex. App.—Tyler 2005, no pet.) . . . . . . . . . . 19

John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst,
     90 S.W.3d 268 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Magnolia Pipe Line Co. v. City of Tyler, 348 S. W.2d 537
    (Tex. Civ. App.—Texarkana 1961, writ ref’d).. . . . . . . . . . . . . . . . . . . 13, 19

McLane Co., Inc. v. Strayhorn, 148 S.W.3d 644
    (Tex. App.—Austin 2004, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Millwee-Jackson Joint Venture v. Dall. Area Rapid Transit,
      350 S.W.3d 772 (Tex. App.—Dallas 2011, no pet.). . . . . . . . . . . . . . . . . . 23

Montrose Mgmt. Dist. v. 1620 Hawthorne, Ltd.,
     435 S.W.3d 393 (Tex. App.—Houston 2014, pet. filed). . . . . . . . . . . . . . . . 9

Robbins v. Limestone Cnty., 268 S.W. 915 (Tex. 1925).. . . . . . . . . . . . . . . . . . . . 18

R.R. Comm’n. of Tex. v. Aluminum Co. of Am.,
      380 S.W.2d 599 (Tex 1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . 22

State v. City of Austin, 331 S.W.2d 737 (Tex. 1960). . . . . . . . . . . . . . . . . . . . 16, 17

State v. Durham, 860 S.W.2d 63 (Tex. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Sw. Bell Tel., L.P. v. Emmett, 401 S.W.3d 826
      (Tex. App.—Houston [14th Dist.] 2013, pet. granted).. . . . . . . . . . . . . . . . 13

Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth.,
      282 S.W.3d 59 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Tex. Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Tex. Dep’t of Transp. v. City of Sunset Valley,
      146 S.W.3d 637(Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

                                                    v
Tex. Dep’t of Transp. v. Sefzik,
      355 S.W.3d 618 (Tex. 2011) (per curiam). . . . . . . . . . . . . . . . . . . . . . . 10, 24

Tex. Lottery Comm’n v. First State Bank of DeQueen,
      325 S.W.3d 628 (Tex. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Tex. Mun. Power Agency v. Johnson, 405 S.W.3d 776
      (Tex. App.—Houston [1st Dist.] 2013, no pet.). . . . . . . . . . . . . . . . . . . 23, 24

Tex. Natural Res. Conservation Comm’n v. IT-Davy,
      74 S.W.3d 849 (Tex. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tex. Parks & Wildlife Dep’t v. Sawyer Trust,
      354 S.W.3d 384 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000). . . . . . . . . . . . . . . 24

Zapata Cnty. Appraisal Dist. v. Coastal Oil & Gas Corp.,
     90 S.W.3d 847 (Tex. App.—San Antonio 2005, pet. denied). . . . . . . . . . . 16

Constitutional Provisions, Statutes, and Rules

43 Tex. Admin Code § 21.34. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

43 Tex. Admin. Code § 21.36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

43 Tex. Admin Code § 21.37. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

43 Tex. Admin Code § 21.38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Tex. Civ. Prac. & Rem. Code § 37.004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tex. Civ. Prac. & Rem. Code § 37.006.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Tex. Const. art. I, § 17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tex. Gov’t Code § 311.034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Transp. Code § 203.092. . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 12, 13, 14, 17, 21

                                                          vi
Tex. R. App. P. 38.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

23 C.F.R. § 645.105.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

23 C.F.R. § 645.111.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23 C.F.R. § 645.201–.215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23 C.F.R. § 645.207.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

23 U.S.C. § 109. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Other

Annotation, Right of Public Body to Compensation Where Property Held by it is
Taken for Another Public Purpose, 56 A.L.R. 365 (2011).. . . . . . . . . . . . . . . . . . 18

4A Julius L. Sackman, Nichols on Eminent Domain (3d ed. 2004). . . . . . . . . . . . 18

29A C.J.S. Eminent Domain § 126 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                          vii
                        NO. 14-14-00823-CV
__________________________________________________________________

    IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT
                       AT HOUSTON, TEXAS
__________________________________________________________________

  TEXAS TRANSPORTATION COMMISSION AND TED HOUGHTON,
      IN HIS OFFICIAL CAPACITY AS CHAIR OF THE TEXAS
               TRANSPORTATION COMMISSION,
                          Appellants,

                                         V.

                    CITY OF JERSEY VILLAGE,
                                         Appellee.
__________________________________________________________________

                  On Appeal from the 165th District Court
              of Harris County, Texas; Cause No. 2012-59338
__________________________________________________________________

     REPLY BRIEF OF APPELLANTS TEXAS TRANSPORTATION
 COMMISSION AND TED HOUGHTON, IN HIS OFFICIAL CAPACITY
    AS CHAIR OF THE TEXAS TRANSPORTATION COMMISSION
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Appellants, the Texas Transportation Commission (TTC) and Ted Houghton,

in his official capacity as Chair of the Texas Transportation Commission (Houghton),

(collectively TxDOT or the State) submit this reply brief requesting that the claims

of Appellee City of Jersey Village (City) be dismissed for want of jurisdiction.
           RESPONSE TO THE CITY’S STATEMENT OF FACTS

The Court should not consider argument, and unsupported or inaccurate factual
statements, contained in the City’s Statement of Facts.

      Texas Rule of Appellate Procedure 38.1 provides that briefs must state the facts

“without argument,” and the statement of facts must be supported by record

references.

      Contrary to Rule 38.1, the City makes argument throughout its Statement of

Facts. For example, the City repeatedly asserts that it owns and holds a compensable

property interest in certain public utility easements, and that TxDOT is legally

required to reimburse it for replacement easements. See Brief of City at 2–3, 5–6,

9–10. These assertions are argument rather than facts and should not be considered

as facts by the Court.

      The City’s assertion that the need to relocate utilities because the public

highway widening project “forces the City to acquire, at additional cost, replacement

easements for the utility lines to run under new properties,” see Brief of City at 3

(emphasis added), is inaccurate. The City concedes that it could relocate its utility

lines in the State’s new right of way but has chosen not to do so. CR 32.

      The City’s claims that it would be unable to effectively service its utility lines

if they were placed in the State’s new right of way are not supported by any record

references. See Brief of City at 3–5. And the statement that “the City would be


                                           2
required to obtain prior permission from TxDOT each and every time it needs to

access its utility lines for repair, maintenance or replacement,” see Brief of City at 3,

is simply untrue. Instead, TxDOT’s regulations provide that utilities give 48-hour

notice before engaging in non-emergency construction or maintenance, or that they

give notice as soon as possible in an emergency situation. See 43 Tex. Admin. Code

§ 21.38(a)(4).1 And of course, the utility must use proper traffic control measures

when engaged in such work to protect the safety of the traveling public. See

§ 21.38(c). These regulations are consistent with TxDOT’s recognition that “[u]nder

state law, public utilities have a right to operate, construct, and maintain their

facilities over, under, across, on, or along highways, subject to highway purposes.”

See 43 Tex. Admin. Code § 21.36(a).

       Moreover, the City’s characterization of TxDOT as a “recalcitrant state

agency”, see Brief of City at 4 n.2, is both inappropriate and unjustified. The fact that

TxDOT, based on both its policy and its understanding of governing law, has refused

to reimburse the City for replacement of non-exclusive public utility easements with




       1
        Permission is only required when a utility wishes to cut into the pavement or concrete riprap.
See § 21.38(a)(5). However, construction and maintenance generally will not require a utility to cut
into the State’s pavement or concrete since longitudinal utility facilities are not placed under
pavement or concrete. See 43 Tex. Admin. Code § 21.37(b)(7) (“On highways with frontage roads,
longitudinal utility facility installations may be located between the frontage road and the right of
way line. Utility facilities shall not be placed or allowed to remain in the center median, outer
separation, or beneath any pavement, including shoulders.”).

                                                  3
exclusive private easements, is not proof that TxDOT fails to cooperate with utility

companies in their maintenance of utility lines within State right of way.

       Contrary to the City’s suggestion, see Brief of City at 6, 7, TxDOT has not

previously conceded that Section 203.092 applies to the City’s request for

reimbursement for replacement of public utility easements with private easements.

And TxDOT does not claim in its Brief that it has never seen the “Grizzard

easement.” See Brief of City at 9. Instead, TxDOT noted that the City did not submit

the Grizzard easement when it submitted proof of a property interest as part of Utility

Agreement U14331. See Brief of TxDOT at 10–11; see also CR 116–25. The actual

facts regarding TxDOT’s so-called concession and the Grizzard easement are as

follows.

       Prior to the City’s filing of suit,2 TxDOT repeatedly told the City that it could

avoid incurring the cost of new easements by relocating its utilities within the State’s

new right of way between the frontage road and the new right of way line. CR

133–36. However, the City indicated that it did not want to relocate its utilities within

the State’s new right of way. CR 133, 135. TxDOT also told the City that TxDOT

could not purchase right of way on behalf of another entity and that only exclusive

ownership rights in existing easements were eligible for reimbursement. CR 134–135.



       2
       E.g., the record includes a letter forwarded to the City nearly a year before suit was filed.
CR 133–37.

                                                 4
In its letter to the City, TxDOT included an excerpt from its Right of Way Utility

Manual which provides that a “PUE [Public Utility Easement] does not convey a

replacement right of way interest to any occupants of the PUE.” CR 136.

      The City responded in letters requesting that it be provided with either in-kind

easement replacement or reimbursement for the cost to obtain replacement easements.

CR 141, 152–53. The City also provided plats and deeds that, according to the City,

demonstrated that the City had a compensable ownership interest in the land that

obligated TxDOT to reimburse it for the cost of replacement easements. CR 140–41,

153. As indicated by the City, one of the documents provided to TxDOT would have

been the “Grizzard easement.” See Brief of City at 9. The Grizzard easement is an

easement that was actually conveyed to the City, and not a public utility easement.

CR 719–22. Thus, the Grizzard easement evidences an ownership interest held by the

City that TxDOT would consider reimbursable because it would be compensable in

eminent domain. However, the City did not submit the Grizzard easement when it

submitted proof of a property interest as part of Utility Agreement U14331. See Brief

of TxDOT at 10–11; see also CR 116–25. The City’s suggestion that this suit

involves both public and private easements, see Brief of City at 3 n.1, 9–10, 30, is not

accurate and not supported by the record. Rather, this suit involves only the City’s

request for reimbursement of the cost to replace the non-exclusive public utility



                                           5
easements referenced in Utility Agreement U14331 with exclusive private easements.

See CR 116–125.

       TxDOT responded to the City in a letter stating that the majority of the

information provided by the City did not “support cost participation by the State in

the value of the existing easements” because the easements were either public utility

easements or were easements owned by someone other than the City. CR 156.

TxDOT noted that it “cannot provide an exclusive easement for replacement of a non-

exclusive public utility easement granted through the City platting requirements.” Id.

However, TxDOT indicated that the Grizzard easement was the one exception that

was “eligible for replacement value subject to TxDOT policies and procedure.” CR

157.3 The Grizzard easement was eligible for replacement value because it was an

exclusive private easement conveyed to the City and not “a non-exclusive public

utility easement granted through the City platting requirements.” See CR 156–57.4

       3
         TxDOT’s description of the easement makes it clear that it is referencing the Grizzard
easement. CR 156–57. The eligible easement is described as an easement 10 feet wide and
approximately 432 feet long containing a 12-inch waterline. CR 157. The Grizzard easement is an
easement that is 10 feet wide and approximately 432 feet long, CR 721, for a 12-inch waterline, CR
719 (The easement sketch states that the easement is ten feet wide and that it consists of 4,320 square
feet. Thus, the easement would have to be 432 feet long. In addition the length of the northern
boundary is a total of 431.97 feet long (85.14 + 346.83) and the southern boundary is a total of
432.05 feet long (80.06 + 351.99). CR 721. Attached as Appendix A is a copy of the easement with
the relevant numbers highlighted in yellow.)
       4
        In spite of TxDOT’s recognition of the Grizzard easement as an exception, the City failed
to submit the Grizzard easement as proof of property interest or to provide proof of the value of the
Grizzard easement when it submitted Utility Agreement U14331. See CR 75–126. The only
documents submitted as part of Utility Agreement U14331 were documents evidencing public utility
easements. See id.

                                                  6
This exception was consistent with TxDOT’s position both before and after suit was

filed and does not represent a concession that Section 203.092 applies to the City’s

request for reimbursement for non-exclusive public utility easements.

                                    ARGUMENT

I.    The City’s declaratory judgment claims are barred by the State’s
      sovereign immunity.

      A.     The City’s general claim for declaratory relief is barred by
             sovereign immunity.

             1.     The City’s claim for a general declaration of rights is barred
                    by sovereign immunity.

      The City wrongly asserts that the Texas Supreme Court recognizes a waiver of

immunity under the Uniform Declaratory Judgments Act (UDJA) for suits seeking a

declaration construing a statute. See Brief of City at 12, 15, 35–36. In City of El Paso

v. Heinrich, the Supreme Court rejected the assertion that the UDJA § 37.004(a)’s

language regarding construction or validity of a statute constitutes a waiver of

immunity. See Tex. Civ. Prac. & Rem. Code § 37.004(a); City of El Paso v. Heinrich,

284 S.W.3d 366, 370–71 (Tex. 2009). Instead, it held that declaratory relief could be

sought to require state officers to comply with statutory or constitutional provisions,

referred to as the ultra vires exception. See id. at 371–72. Such claims do not

implicate immunity because they are not claims against the state, but instead are

claims to require state officers to comply with the law. Id. at 371–73. In addition, the


                                           7
Supreme Court recognized that the UDJA’s § 37.006(b) waived immunity of

governmental entities “[f]or claims challenging the validity of ordinances or statutes.”

Id. at 373 n.6.

      In 2010, a year after the Heinrich decision, the Supreme Court decided Texas

Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010).

DeQueen involved “a challenge to the validity of a statute.” Id. at 633. In discussing

Heinrich, the Court explained that in Heinrich it had “distinguished between claims

seeking declaratory relief in an ultra vires suit, . . . and suits challenging the validity

of an ordinance or statute” under UDJA § 37.006. Id. at 633–34. The Court also

specifically cited Heinrich’s holding that the UDJA’s § 37.006 waived immunity of

governmental entities for claims challenging the validity of ordinances or statutes. Id.

at 633–34 & n.4.

      The City asserts that DeQueen supports a waiver of sovereign immunity

because DeQueen rejected the Lottery Commission’s argument that immunity

“applies only to suits involving constitutional invalidation and not to those involving

statutory interpretation.” See Brief of City at 35. However, the City misunderstands

the argument made by the Lottery Commission in DeQueen. The Commission’s

argument was that § 37.006(b) only waived immunity for claims that a statute was

invalid because it violated the Constitution, and not for claims that a statute was

invalid for other reasons, such as the statute in DeQueen that was found invalid

                                            8
because it conflicted with another statute.5 The Court rejected the Commission’s

distinction. DeQueen, 325 S.W.3d at 634–35.6 However, the suggestion that the

Court’s rejection of the Commission’s argument constitutes recognition of a

wholesale waiver of immunity for statutory construction claims is not supported by

Heinrich, DeQueen or the Supreme Court opinions following them.7

       In 2011, the Supreme Court issued two more opinions in which it discussed the

UDJA and immunity. In Texas Parks and Wildlife Department v. Sawyer Trust, 354

S.W.3d 384 (Tex. 2011), the Supreme Court again rejected the claim that § 37.004(a)

waived immunity from suit for a declaration of rights under a statute. See id. at 388

(“[T]here is no general right to sue a state agency for a declaration of rights.”).

Instead, it held that the only waiver of immunity contained in the UDJA was under

§ 37.006(b) for claims challenging the validity of ordinances or statutes. Id. Other

than the waiver under § 37.006(b), the Court declined to recognize any other waivers:

       5
         Section 37.006(b) provides: “In any proceeding that involves the validity of a municipal
ordinance or franchise, the municipality must be made a party and is entitled to be heard, and if the
statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state
must also be served with a copy of the proceeding and is entitled to be heard.” Tex. Civ. Prac. &
Rem. Code § 37.006(b) (emphasis added).
       6
       The Court also rejected the Commission’s argument that § 37.006(b) only waived the
immunity of a municipality. See DeQueen, 325 S.W.3d at 634.
       7
         TxDOT acknowledges that the City also cites this Court’s opinion in Montrose Management
District v. 1620 Hawthorne, Ltd., 435 S.W.3d 393 (Tex. App.—Houston 2014, pet. filed). However,
given that the Court dismissed claims because they sought relief for actions taken under a statute,
that a petition for review is currently pending in Montrose, and in light of Supreme Court
jurisprudence, the Court’s discussion in Montrose of waiver for construction of statutes should be
treated as non-binding dicta. See id. at 404.

                                                 9
      While the DJA waives sovereign immunity for certain claims [those
      challenging the validity of ordinances or statutes], it is not a general
      waiver of sovereign immunity. But generally, the DJA does not alter a
      trial court's jurisdiction. Rather, the DJA is merely a procedural device
      for deciding cases already within a court's jurisdiction. And a litigant’s
      couching its requested relief in terms of declaratory relief does not alter
      the underlying nature of the suit. Consequently, sovereign immunity will
      bar an otherwise proper DJA claim that has the effect of establishing a
      right to relief against the State for which the Legislature has not waived
      sovereign immunity.

Sawyer Trust, 354 S.W.3d at 388 (internal citations and quotation marks omitted).

      In Texas Department of Transportation v. Sefzik, 355 S.W.3d 618 (Tex. 2011),

Sefzik argued that actions seeking a declaration of rights were exempt from the

doctrine of sovereign immunity. See id. at 621. Pointing to its holding in Heinrich,

the Court disagreed: “[In Heinrich] we necessarily concluded that the UDJA does not

waive the state's sovereign immunity when the plaintiff seeks a declaration of his or

her rights under a statute or other law.” See id. And, as in Heinrich, the Court

recognized only two allowable options for declaratory relief against the State: a claim

against state officials under the ultra vires exception and “a declaratory judgment

action that challenges the validity of a statute.” See id. at 622.

             2.     The City is seeking monetary relief, which is barred by
                    sovereign immunity.

      The City suggests that its suit is not one for money damages because “[n]o

money damages are sought as relief in this case,” and “no fiscal liability will be

imposed on the State for past damages pursuant to existing utility agreements with

                                           10
the City.” See Brief of City at 39–40. However, on the other hand, the City admits

that it intends to utilize the judgment to force TxDOT to execute a new or modified

contract regarding Segment 6 that will include the reimbursement for replacement

easements that was not included in already-executed Utility Agreement U14331. See

Brief of City at 40; see also CR 623–24 (“the City will rely on the declaratory

judgment and execute a new or modified utility agreement with TxDOT for Segment

6”). The City’s suit is no different in kind from City of Houston v. Williams, 216

S.W.3d 827 (Tex. 2007), in which retired firefighters brought a declaratory judgment

action against the City to recover amounts allegedly previously withheld from lump-

sum termination payments in violation of the Local Government Code. See Heinrich,

284 S.W.3d 366, 374 (discussing Williams). In Williams, the Court held that

retrospective monetary claims are barred by immunity. Heinrich, 284 S.W.3d at 374.

Likewise here, the City’s attempts to recover amounts withheld from Utility

Agreement U14331 are barred by immunity.

            3.     The City is seeking to control State action and thus, its claims
                   are barred by sovereign immunity.

      Contrary to the City’s claims, its suit seeks to impose liability on the State for

reimbursement for replacement easements. The City admits as much when it says it

intends to utilize the judgment to force TxDOT to execute a new or modified contract

regarding Segment 6 that will include the reimbursement for replacement easements,


                                          11
and to require reimbursement for replacement easements in new and future contracts

regarding Segment 7. See Brief of City at 40. Thus, it is an attempt to control state

action by imposing liability on the State. See Tex. Natural Res. Conservation Comm’n

v. IT-Davy, 74 S.W.3d 849, 855–56 (Tex. 2002). Such claims are barred by sovereign

immunity. Id. at 856.

      B.     The City’s alleged ultra vires claims are barred by sovereign
             immunity.

             1.    The City’s alleged ultra vires claims against the Texas
                   Transportation Commission are barred by sovereign
                   immunity.

      The City effectively concedes that its ultra vires claims against the Texas

Transportation Commission are barred by sovereign immunity. See Brief of City at

14 (recognizing that ultra vires suits must be brought against state officials.) Thus,

the trial court was without jurisdiction to enter its order against the Texas

Transportation Commission.

             2.    The City’s alleged ultra vires claims against Houghton are
                   barred by sovereign immunity.

                   a.     Section 203.092 must be strictly construed.

      The Supreme Court has held that statutes such as § 203.092 must be strictly

construed. See Sw. Bell Tel., L.P. v. Harris Cnty. Toll Rd. Auth., 282 S.W.3d 59, 64

(Tex. 2009). The City concedes that section 203.092 must be strictly construed but

asserts that under strict construction statutes must be given their plain meaning. See

                                         12
Brief of City at 18. Nonetheless, the plain meaning of § 203.092 is that it doesn’t

include reimbursement for replacement easements. The City also suggests the Harris

County Toll Road Authority decision undermines TxDOT’s position because it

indicates that a utility may be eligible for reimbursement under § 203.092 if the utility

has a compensable property interest in the land occupied by the facility to be

relocated. See Brief of City at 19–20 n.3. Far from undermining TxDOT’s position,

the Supreme Court’s decision provides authoritative support since it equates having

a “compensable property interest in the land occupied by the facility to be relocated”

with the facts in Magnolia Pipe Line Co. v. City of Tyler, 348 S.W.2d 537, 543 (Tex.

Civ. App.—Texarkana 1961, writ ref'd), where a utility was entitled to reimbursement

because it had purchased easements from private owners. See Harris Cnty. Toll Rd.

Auth., 282 S.W.3d at 66.

      In addition, to the extent that § 203.092 waives the State’s sovereign immunity

as to utility facility relocation costs, such waiver must be clear and unambiguous. See

Tex. Gov’t Code § 311.034. The City fails to explain how § 203.092 could constitute

a clear and unambiguous waiver of immunity for reimbursement of the cost to replace

non-exclusive public utility easements with exclusive private easements. The City

also does not address this Court’s opinion in Southwestern Bell Telephone, L.P. v.

Emmett, 401 S.W.3d 826 (Tex. App.—Houston [14th Dist.] 2013, pet. granted), in

which the Court strictly construed another relocation statute.

                                           13
                    b.    Section 203.092 does not require reimbursement for
                          replacement easements.

                          i.     The plain language of § 203.092 does not require
                                 reimbursement for replacement easements.

      The City urges that the plain language of § 203.092 requires reimbursement for

replacement easements. See Brief of City at 17–21, 24–27. Yet § 203.092 never even

mentions replacement easements. Instead, it only references facilities. The City

suggests that if the Legislature had intended to exclude replacement easements it

would have discussed them in subsection (d)’s list of deductions. See Brief of City

at 19–20. However, there is no reason to provide for deductions from reimbursement

for replacement easements when the statute doesn’t contemplate any reimbursement

for replacement easements. If the statute was intended to include reimbursement for

replacement easements there most surely would be something in the statute

delineating what type of property interest and how much property would be

reimbursable. And, contrary to the City’s claim, see Brief of City at 20,

reimbursement for replacement easements would do much more than preserve the

City’s status quo. The City’s right of access to non-exclusive public utility easements

that are not compensable would be replaced with exclusive private easements that

could be compensable if there was ever a need to further widen the highway.

      Federal regulations do not support the City’s position. See Brief of City at

24–27. The City points out that 23 C.F.R. § 645.105 defines relocation as “the

                                          14
adjustment of utility facilities required by the highway project” which includes among

other things, “acquiring necessary right-of-way on the new location.” See Brief of

City at 24. The City suggests that this phrase refers to reimbursement for replacement

easements. See id. However, “acquiring necessary right-of-way on the new location”

is a reference to the government’s own acquisition of right-of-way in which to place

all relocated utilities as part of a roadway project, and not reimbursement to specific

utilities for replacement easements. See 23 C.F.R. § 645.105.8 Federal participation

in the cost of replacement easements is governed by 23 Code of Federal Regulations

§ 645.111(a)(1) which requires that a utility hold an interest that is compensable in

eminent domain.

       The City also points to 43 Texas Administrative Code § 21.34 which provides

that where federal or state law prescribes a “higher degree of protection for highway

facilities or the traveling public” than the regulations, then that law controls. See

Brief of City at 24–25. This provision has no relevance to the City’s argument.




       8
         See also 23 U.S.C. § 109(l); 23 C.F.R. §§ 645.201-.215. 23 U.S.C. § 109(l) prescribes
standards to follow in accommodating utility facilities in the highway right-of-way. 23 C.F.R.
§§ 645.201-.215 prescribe policies and procedures for accommodating utility facilities in the right-
of-way of Federal-aid or direct Federal highway projects. Both 23 U.S.C. § 109(l)(2)(B) and 23
C.F.R. §§ 645.207 define “right-of-way” as “real property, or interests therein, acquired, dedicated
or reserved for the construction, operation, and maintenance of a highway.”

                                                15
                                      ii.     Reimbursement for replacement easements
                                              is not properly attributable to relocation.

       In State v. City of Austin, 331 S.W.2d 737 (Tex. 1960), the Supreme Court

indicated that replacement easements are not properly attributable to relocation. See

id. at 746. The City argues that the Supreme Court’s statement was mere dictum that

should be ignored. See Brief of City at 28. However, a higher court’s statements of

law that are not pivotal to that court’s decision may still be considered binding on

lower courts. See, e.g., Elledge v. Friberg–Cooper Water Supply Corp., 240 S.W.3d

869, 870 (Tex.2007); R.R. Comm'n of Tex. v. Aluminum Co. of Am., 380 S.W.2d 599,

601 (Tex.1964). “Judicial dictum, a statement by the supreme court made very

deliberately after mature consideration and for future guidance in the conduct of

litigation, is ‘at least persuasive and should be followed unless found to be

erroneous.’” Zapata Cnty. Appraisal Dist. v. Coastal Oil & Gas Corp., 90 S.W.3d

847 (Tex. App.—San Antonio 2002, pet. denied) (quoting Edwards v. Kaye, 9

S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)). In City of

Austin, the Supreme Court’s statement that the cost of acquiring replacement

easements is not properly attributable to relocation appears to be judicial dictum,

made after careful consideration and for guidance in future cases. See City of Austin,

331 S.W.2d at 746.9 Thus, it should be followed.

       9
        It is instructive that in spite of the recommendation of two of its members, the majority of
the Court refused to delete the statement from the Court’s opinion. See City of Austin, 331 S.W.2d

                                                16
       The City does cite City of Austin in support of its argument that it should be

reimbursed for replacement easements. See Brief of City at 21–24. However, City of

Austin did not involve reimbursement for replacement easements but rather

reimbursement for the utility facilities themselves that were being relocated in the

highway right of way. The State argued that 203.092’s predecessor statute was an

unconstitutional grant of public money but the Supreme Court disagreed. See id. at

745. Nonetheless, the Court specifically distinguished the cost of acquiring right of

way that would be owned by a utility saying reimbursement for those costs “would

be an unconstitutional gift for a private purpose.” Id. at 746. Therefore, the City

cannot rely on the City of Austin opinion to support its position.

       Reimbursement for replacement easements also cannot be considered properly

attributable to relocation because the City has the right to relocate its lines within the

State’s new right of way, a location that is functionally equivalent to location in a

non-exclusive public utility easement, making the acquisition of replacement

easements totally unnecessary and a waste of scarce governmental resources. The

City responds that it has chosen not relocate its lines within the State’s new right of

way because it will not have control of and access to its utilities if they are placed in

the State’s new right of way. See Brief of City at 28–29. This argument is a red

herring given that the City has a legal right to operate, construct, and maintain its


at 747 (Smith, J., op. on mot. for reh’g).

                                             17
facilities in the highway right of way, and TxDOT’s regulations only require notice

before engaging in construction, maintenance or repair. See supra pp. 2–3.

                               iii.   The City does not have a compensable interest in
                                      the land occupied by the facilities to be relocated.

       The City is not entitled to reimbursement for replacement easements because

the City’s interests are non-exclusive public utility easements held by the City in its

governmental capacity. See Brief of TxDOT at 25–27. The City does not deny that

the public utility easements are held by the City in its governmental capacity.10

Instead, it asserts that it is seeking reimbursement for public and private easements

that are compensable property interests. See Brief of City at 29–34. The City’s

assertion has no merit. First, the City is not seeking reimbursement for any private

easements. As discussed above, the only private easement pointed to by the City is

the Grizzard easement which was not submitted for reimbursement when Utility

Agreement U14331was submitted by the City. All of the property interests referenced

in Utility Agreement U14331are public utility easements. See CR 116–125; see also

supra pp. 2–3.

       10
          That property held by a municipality in its governmental capacity may be taken by the State
without the payment of compensation appears to be black letter law. See 4A Julius L. Sackman,
Nichols on Eminent Domain § 15.01[3], at 15-8 (3d ed. 2004); Annotation, Right of Public Body to
Compensation Where Property Held by it is Taken for Another Public Purpose, 56 A.L.R. 365, Part
II.a. (2011); 29A C.J.S. Eminent Domain § 126 (2014); see also Tex. Dep’t of Transp. v. City of
Sunset Valley, 146 S.W.3d 637 (Tex. 2004) (“municipalities [do not] possess a superior ownership
interest in public roads vis-a-vis the State that would support a right to compensation under the
Constitution's takings clause when they are applied to another public use”); Robbins v. Limestone
Cnty., 268 S.W. 915 (Tex. 1925).

                                                 18
      Second, all of the cases cited by the City regarding the compensability of

easements, with the exception of the H L & P case, involved private easements. See

e.g., Harris Cnty. Flood Control Dist. v. Shell Pipe Line Corp., 591 S.W.2d 798 (Tex.

1979) (private easement); Hubert v. Davis, 170 S.W.3d 706 (Tex. App.—Tyler 2005,

no pet.) (same); Magnolia Pipe Line Co., 348 S.W.2d 537 (same); City of Grand

Prairie v. Am. Tel. & Tel. Co., 405 F.2d 1144 (5th Cir. 1969) (same).

      Third, the Court’s holding in Houston Lighting & Power Co. v. State, 925

S.W.2d 312 (Tex. App.—Houston [14th Dist.] 1996, writ denied), should be

distinguished. In H L & P, the utility was seeking reimbursement for the cost of

relocation of the facility, not for the cost of replacement easements. In addition, the

cases relied on by this Court in H L & P admittedly involved private easements not

public utility easements. Moreover, the State is entitled to argue for a change or

modification of law existing in this Court, especially given the Supreme Court’s

decision in Texas Department of Transportation v. City of Sunset Valley, issued

several years after the H L & P decision. See City of Sunset Valley, 146 S.W.3d 637

(Tex. 2004).

      Fourth, the City’s contention that TxDOT is estopped from asserting that the

City doesn’t have a compensable interest in public utility easements, see Brief of City

at 32–33, must be rejected. The City states that TxDOT acknowledged the

applicability of § 203.092 by entering Utility Agreement U14331 regarding relocation

                                          19
of the utility facilities themselves. Nevertheless, this agreement involved

reimbursement for the utility facilities not reimbursement for replacement easements.

Moreover, the State is not subject to estoppel. State v. Durham, 860 S.W.2d 63, 67

(Tex. 1993); see also City of San Antonio v. TPLP Office Park Props., 218 S.W.3d

60, 67 (Tex. 2007) (per curiam) (City not estopped from closing driveway to regulate

traffic); City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 773–78 (Tex.

2006) (City was not estopped from enforcing ordinance which prevented access

driveway); City of Hutchins v. Prasifka, 450 S.W.2d 829, 835–36 (Tex. 1970) (City

not estopped from classifying property as residential for zoning purposes); Argyle

Indep. Sch. Dist. v. Wolf, 234 S.W.3d 229, 240–46 (Tex. App.—Fort Worth 2007, no

pet.) (School District was not estopped from changing policy regarding tuition even

though superintendent had previously stated in letter that residents of particular street

would not be charged tuition).

      Finally, the City claims that during negotiations with the City TxDOT

recognized that replacement easements were compensable. See Brief of City at 33–34.

The City’s claim is not accurate. See supra pp. 4–6. TxDOT acknowledged that the

City could be reimbursed for the Grizzard easement because it was a private easement

that was compensable in eminent domain. See CR 156–57. TxDOT has never

acknowledged that non-exclusive public utility easements are compensable.



                                           20
                    c.     Construction of Section 203.092 as requiring
                           reimbursement for replacement easements would cause
                           the State to pay betterment costs in violation of the
                           Texas Constitution.

      TxDOT asserts that § 203.092 should not be interpreted to require the State to

reimburse the City for replacement of non-exclusive public utility easements with

exclusive private easements because such an interpretation may result in a

constitutional violation. The City contends that this Court may not consider a claim

under the Constitution for the first time on appeal, and that the courts may not

consider the merits on a plea to the jurisdiction. See Brief of City at 44–47. The City’s

contentions have no merits for several reasons.

      First, TxDOT is not asserting a “claim” under the Constitution but rather an

argument why § 203.092 should not be interpreted to require the State to reimburse

the City to replace non-exclusive public utility easements with exclusive private

easements. Second, the Supreme Court recognized in Texas Department of Parks &

Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), that where a jurisdictional

challenge implicates the merits of a plaintiff’s cause of action the court may review

relevant evidence to determine if a fact issue exists. See id. at 227. Third, the issue in

an ultra vires claim is whether a government official has failed to comply with a

statutory or constitutional provision. See Heinrich, 284 S.W.3d at 372. To determine

whether an official has failed to comply, and thus whether the court has jurisdiction,


                                           21
the court must interpret the provision in question. See McLane Co., Inc. v. Strayhorn,

148 S.W.3d 644, 650 (Tex. App.—Austin 2004, pet. denied). Finally, jurisdiction

may be raised at any time. See Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012);

Anderson v. Truelove, 446 S.W.3d 87 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

Thus, TxDOT is not precluded from making jurisdictional arguments on appeal.

      According to the City, reimbursement for replacement of non-exclusive public

utility easements with exclusive private easements would not result in betterment

because exclusive private easements would insure access to its utility lines and

TxDOT has conceded that Section 203.092 applies to the City’s request for

reimbursement for non-exclusive public utility easements. See Brief of City at 47–48.

However, as discussed above, the concern regarding access is a red herring given that

the City has a legal right to operate, construct, and maintain its facilities in the

highway right of way and TxDOT’s regulations only require notice before engaging

in construction, maintenance or repair. See supra pp. 2–3. Furthermore, TxDOT has

never acknowledged that non-exclusive public utility easements are compensable. See

supra pp. 4–6.

II.   The City’s claim under Article 1, Section 17 of the Texas Constitution is
      barred by the State’s sovereign immunity.

      In its first amended petition, the City asserted that Appellants’ actions violated

Article 1, Section 17 of the Texas Constitution. CR 33–5. The City asserts that it did


                                          22
not intend to make a claim for inverse condemnation, and that it did not intend to seek

monetary relief for inverse condemnation through a request for declaratory relief. See

Brief of City at 49–50. But, to the extent that its petition could be interpreted as a

claim for inverse condemnation, the Court has no jurisdiction because such a claim

would be invalid. See Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d 468, 476

(Tex. 2012) (sovereign immunity is retained where a plaintiff fails to properly plead

or establish an inverse condemnation claim). The City cannot assert an inverse claim

for the taking of public utility easements because they are not property interests that

are compensable in eminent domain. See Brief of TxDOT at 25–27; see also supra

pp. 17–18.

       To the extent that the City’s petition could be interpreted as an attempt to

characterize a suit for money damages as a declaratory judgment action it is also

barred by sovereign immunity. See Millwee-Jackson Joint Venture v. Dall. Area

Rapid Transit, 350 S.W.3d 772, 785–86 (Tex. App.—Dallas 2011, no pet.).

III.   The City’s claims regarding Segment 7 are not ripe.

       TxDOT raised the jurisdictional issue of ripeness in the trial court but the City

did not come forward with any evidence of ripeness with respect to Segment 7. Thus,

the Court has no jurisdiction with respect to claims regarding Segment 7. See Tex.

Mun. Power Agency v. Johnson, 405 S.W.3d 776, 781 (Tex. App.—Houston [1st

Dist.] 2013, no pet.) (“A claim is not ripe if it concerns ‘uncertain or contingent

                                          23
future events that may not occur as anticipated or may not occur at all,” quoting Waco

Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851–52 (Tex. 2000)).

IV.   The City’s claim for attorneys’ fees is barred by the State’s sovereign
      immunity.

      The UDJA does not waive the State’s sovereign immunity for the City’s claim

seeking construction of a statute. See Sefzik, 355 S.W.3d at 621; Heinrich, 284

S.W.3d at 370–71. In addition, the State’s sovereign immunity as to the City’s ultra

vires claim is not waived because such suits cannot be brought against the

Commission, and because Houghton did not fail to perform a nondiscretionary duty

under Section 203.092 of the Texas Transportation Code. See Heinrich, 284 S.W.3d

at 372–73. Thus, the City’s UDJA claims are not authorized and the State retains

sovereign immunity from the claim for attorneys’ fees. See John G. & Marie Stella

Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 289 (Tex. 2002).

                                     PRAYER

      Appellants, Texas Transportation Commission and Ted Houghton, in his

official capacity as Chair of the Texas Transportation Commission, respectfully pray

that this Honorable Court of Appeals grant the following relief:

      1) reverse (1) the court’s denial of Defendants’ Second Amended Plea to the

      Jurisdiction and Amended Motion for Summary Judgment Under Tex. R. Civ.

      P. 166a(b) and (c); (2) the court’s order, signed October 23, 2014, that denied


                                         24
Defendants’ Motion for Reconsideration; and (3) the court’s order signed

December 3, 2014 that denied Appellants’ second amended plea to the

jurisdiction.

2) dismiss all of Appellee’s claims for want of jurisdiction;

3) render judgment that Appellee take nothing; and

4) order that Appellee pay all costs incurred by Appellants.

                                 Respectfully submitted,

                                 KEN PAXTON
                                 ATTORNEY GENERAL OF TEXAS

                                 CHARLES E. ROY
                                 FIRST ASSISTANT                ATTORNEY
                                 GENERAL

                                 JAMES E. DAVIS
                                 DEPUTY ATTORNEY GENERAL FOR
                                 CIVIL LITIGATION

                                 RANDALL K. HILL
                                 ASSISTANT ATTORNEY GENERAL
                                 CHIEF, TRANSPORTATION DIVISION

                                 /s/ Anthony G. Brocato, Jr.
                                 ANTHONY G. BROCATO, JR.
                                 Assistant Attorney General
                                 State Bar No. 03039001
                                 anthony.brocato@texasattorneygeneral.gov
                                 SUSAN DESMARAIS BONNEN
                                 Assistant Attorney General
                                 State Bar No. 24053873
                                 susan.bonnen@texasattorneygneral.gov
                                 Transportation Division

                                   25
                                        P.O. Box 12548
                                        Austin, Texas 78711-2548

                                        (512) 463-2004
                                        (512) 472-3855 - Facsimile

                                        COUNSEL FOR APPELLANTS
                                        TEXAS TRANSPORTATION
                                        COMMISSION AND TED HOUGHTON,
                                        IN HIS OFFICIAL CAPACITY, AS
                                        CHAIR OF THE TEXAS
                                        TRANSPORTATION COMMISSION

                       CERTIFICATE OF COMPLIANCE

       I certify that this document contains 6176 words as determined by the word
count of the computer program used to prepare this document, excluding the sections
of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).

                                        /s/ Anthony G. Brocato, Jr.
                                        ANTHONY G. BROCATO, JR.
                                        Assistant Attorney General

                          CERTIFICATE OF SERVICE

       This is to certify that on the 9th day of March, 2015, a true and correct copy of
the foregoing Reply Brief of Appellants Texas Transportation Commission and Ted
Houghton, in His Official Capacity as Chair of the Texas Transportation Commission
has been sent via electronic service and email, to the following:

Mr. Charles W. Irvine
Irvine & Conner, PLLC
4709 Austin Street
Houston, Texas 77004
Attorney for Appellee, City of Jersey Village

                                        /s/ Anthony G. Brocato, Jr.
                                        ANTHONY G. BROCATO, JR.
                                        Assistant Attorney General

                                          26
                                                                              Appendix A
                                                                              Page 1 of 4


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                     THE STATE OF fJ(                                                               05111198 100744001 1011293                    SU0
                     COUNTY OF HARRIS
                     CITY OF JERSEY VIlLAGE


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                      Grantor(s). for and in c       deraden of the sum of tan dOllars and other good and valuable services paid to Cirsatar(s)
                      in hand by the City of Jersey Village, Feast, ban graistad. sold and conveyed, and by theta presents does gram. sell
                      and convey 0 the City otPeraey Village, Tents. s monicips! corporation, 16501 Jersey Dtlve, Houston. Team 77040,
                     a JO loot wide utilityassonant      and an addtliozral 20 foot temporary working casement, said 20 foot temporary working
                     easemrnt to rant ddritg the least atnouns of hose reasonably necessary to complete construction riie of a 12
                     water line In the 10  foot rr.illty eusemene (total macniece width temporary and permanent being 30 feet) to assist upon
                     and cotaulcuci, esttot’sixuct, maintain, operate, inspect, replace, repair, and remove at. underground msmiepal utility
                     line together whit all necessity appurtestances over said acroes                          is Eablbft A                       as the
                     made a part hereof for all intense and purposes as if the name were copied verbatim heroin. The City hereby                  permanent
                     to restore any portion of the property relative to this basement that ta disturbed for utility infraserucetsre purporce to   easement)
                     a reasonably similar condition as its original condition within a reasonable period of time after completion of the
                     project,   or any subsequent repairs thereto.
                                                    hereby retain all righiri, abilities and authorities to cosssnuct and permanently
                   Grantor and its butt’s and assigns
                   maintain pavof aècess andior driveways across, over nd through said utility easements (both pernianetir and
                   tetuporary).

                   To have and to bold rise above described premises, except as provided above, together with all and singular the rigito
         4         aed appurtenances thereto in itty wine belonging, to die City of Jeroey Village, Texas, itt successors or assigns
                   forever. The Grantor does hereby bind itself, its heirs anti assigns, to warrant sod forevor defend all arid singular the
                   said easement to rite City of ieroey Village, Its successors and assigns, against every person whomsoever Iawhdty
                   claiming or to claim the sante or any part thereof.


                   Euecuted thie
                            9,,lhday of
                            2                         APRIL             AD. 1998.


                                Dy
                                                                    ,




                                     fdø2
                                 Grizzard Partnership. lid. VLce—Preeident
                                 Plantation Land Company
                                                                                      By
                                                                                             pti
                                                                                              t
                                                                                              wenL
                                                                                              enr
                                                                                              seasorpreei
                                                                                                    rd Partnership. Ltd.
                                                                                               Plantation Laod Company
                                 General Partner                                               General Partner
                   THE STATE OP COLORADO.
                   COUNTY OF OUItAY

                   This Inslnimest was aeisnow)edgodbefoeemriou Be29thda
                                                                ,of
                                                                1                          APRIL    .   t998. bylamesM. Oriuart.

                                                                        LJQIIA)
                                                   Notary Public is aIi for The Sian of tlora5o
                                                   Nutirys Prialed Name
                                                   B°l rq,Lctsu
                                                   My Cei”mision eripiresi     Ii /301t
                                                                                  8
                                                                                  3




                                                                                                                                                              •1

(Any provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and
 unenforceable tsnder the Federal Law. Confidential information may have been redacted from the document in compliance with
Qhe Public Information Act.


 A Certified Copy
 Attest: 9/4/2014
 Stan Stanart, County Clerk
 Harris County, Texac

         ‘       ._L4                !
                                -            j                    Deputy
                                                                      Appendix A
                                                                      Page 2 of 4




                                                                                             51 —5tJ--1 9
   •                 .       THE STATEOP TEXAS.
                             cOLJN’tOFHARRlS

             •           .      tnat              wdgcd ce               of M4Y. 1998, by Sme G.   Wer.




                                                              /L1       cr
                                                                        7     c1c    up




                 V


                                                                                                                  V




(v provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and
  unenforceable under the Federal Law. Confidential information may have been redacted from the document in compliance with
Ithe Public Information Act.


 A Certified Copy
 Attest: 9/4/2014
 Stan Stanart, County Clerk
 Harris County, Texas



       /                          ‘L.
                                                             Deputy
                                r,
                                     .
                                                             Appendix A
                                                             Page 3 of 4


                                                                                  :..   ....




                                                                                  51 —5O— I iO




                                                                                                      n
                                                                                                      I-.”
                                                                     0




                                                                                                     i !:
                                                                         8Z_,T
                                                                                   —




                                                                         Ecy
                                                                         i
                                                                         >(

                        q                                                :s:V


                       •    •
                           eOn
                                -5.
                                                                              >rnOm
                                                                              -                           c,
                                                                              ;°:;;,           ;ss   rn            .   -




(Any provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and
 unenforceable under the Federal Law. Confidential information may have been redacted from the document in compliance with
lse Public Information Act.


 A Certified Copy
 Attest: 9)4/2014
 Stan Stanart, County Clerk
 Harris County, Texas

      I!      4
              _jg
       --    )“...
                           C.
                                                    Deputy
                                                            Appendix A
                                                            Page 4 of 4




                                                                              51 e—50— I 9 I




                                       CL,ojq




                                                   MAYZ 1 1998




Any provision herein which restrict the sale, rental or use of the described Real Property because of color or race is invalid and
 unenforceable under the Federal Law. Confidential information may have been redacted from the document in compliance with
the Public Information Act.


 A Certified Copy
 Attest: 9/4/2014
 Stan Stanart, County Ckrk
 Harris Cpu,)ty, jexafr_)


  i__i
                                                   Deputy
