Houston Belt & Terminal Railway Co., Bnsf Railway Co., and Union Pacific Railroad Co. v. City of Houston, Texas and Daniel Krueger, in His Official Capacity as Director of Public Works and Engineering

IN THE SUPREME COURT OF TEXAS
444444444444
NO . 14-0459
444444444444

HOUSTON BELT & TERMINAL RAILWAY CO.,
BNSF RAILWAY CO., AND UNION PACIFIC RAILROAD CO.,
PETITIONERS,
v.

CITY OF HOUSTON, TEXAS AND DANIEL KRUEGER, IN HIS
OFFICIAL CAPACITY AS DIRECTOR OF PUBLIC WORKS AND ENGINEERING,
RESPONDENTS

4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444

JUSTICE LEHRMANN , concurring.

I agree that the railroads have alleged viable ultra vires claims that are not barred by

governmental immunity, and I join the Court’s judgment and opinion in full. I write separately to

elaborate on the Court’s characterization of a governmental entity’s immunity from suit, an issue

with which we have recently grappled.

Quoting our opinion in Rusk State Hospital v. Black, 392 S.W.3d 88, 91 (Tex. 2012), the

Court notes that “immunity from suit implicates courts’ subject-matter jurisdiction.” ___ S.W.3d

at ___. Notably, when we made that statement in Rusk, we stopped short of saying that “immunity

equates to a lack of subject-matter jurisdiction for all purposes.” Rusk State Hosp., 392 S.W.3d at
95; see also id. at 102 (Hecht, J., concurring) (noting that “the Court does not equate immunity to

a lack of subject-matter jurisdiction”). Our use of the word “implicates” was no accident.

That immunity from suit implicates aspects of subject-matter jurisdiction has led us to hold

that certain rules associated with the subject-matter jurisdiction label apply to such immunity,

including that it may be raised for the first time on interlocutory appeal. Id. at 94; see also Tex.

Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (holding that immunity from suit is

properly raised in a plea to the jurisdiction). We have not yet had occasion to address whether

certain other aspects of subject-matter jurisdiction apply to immunity from suit. See, e.g., Rusk State

Hosp., 392 S.W.3d at 102 (Hecht, J., concurring) (“[W]hile a court is obliged to examine its subject-

matter jurisdiction on its own in every case, we have never suggested that a court should raise

immunity on its own whenever the government is sued.”). Most notably, we have not examined

whether a governmental entity’s immunity from suit renders a final judgment against the entity void

and thus “forever . . . open to reconsideration.” In re United Servs. Auto Ass’n, 307 S.W.3d 299, 309

(Tex. 2010) (“A judgment is void if rendered by a court without subject matter jurisdiction.”).

This case does not present these questions, making it unnecessary to further examine here

the nature of the government’s immunity from suit. I mention these issues only to clarify that they

remain unresolved and suitable for further analysis in the proper case.

_______________________________
Debra H. Lehrmann
Justice

OPINION DELIVERED: April 1, 2016

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