Dissenting Opinion By
Justice MURPHY.Oncor argues that the doctrine of governmental immunity does not apply to eminent domain proceedings because the *108statutory and mandatory scheme for condemnation does not subject the State to liability. It also argues that a grant of power to condemn public land necessarily waives governmental immunity. Because I agree that Oncor’s proceeding does not implicate the governmental immunity doctrine, I would grant Oncor’s motion for rehearing and affirm the trial court’s order denying DART and The T’s plea to the jurisdiction. Assuming governmental immunity were implicated, I would conclude the legislature has waived immunity.
Governmental Immunity
In Oncor’s live pleading, it seeks aerial easement rights from DART and The T pursuant to chapter 21 of the Texas Property Code and section 181.004 of the Texas Utility Code. In its prayer for relief, Oncor seeks appointment of special commissioners to hear its condemnation petition and asks that upon payment into the registry of the amount awarded the landowners (DART and The T), it receive a writ of possession necessary to enforce the decision of the special commissioners. Oncor requests costs of suit and “such other and further orders, writs and relief, both general and special, legal and equitable, to which it is entitled.”
Governmental immunity from suit does not protect against all legal proceedings. The Supreme Court of Texas has characterized the doctrine of governmental immunity as protecting the State from lawsuits for money damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex.2002). In IT-Davy, a declaratory judgment suit, the court also distinguished impermissible claims against a governmental entity as those seeking to establish a contract’s validity, to enforce performance under a contract, or to impose contractual liabilities because those suits attempt to control state action by imposing liability on the governmental unit. See id. at 855-56.
Oncor’s suit, in pleading and substance, seeks relief against DART and The T to determine the parties’ rights in the property for which Oncor seeks an aerial easement. As such, it is a quasi in rem action. See Bodine v. Webb, 992 S.W.2d 672, 676 (Tex.App.-Austin 1999, pet. denied) (quasi in rem action affects interests of particular persons in property). Neither an in rem nor a quasi in rem proceeding imposes personal liability on the property owner. Id.; see also HMS Aviation v. Layale Enters., S.A., 149 S.W.3d 182, 187 n. 1 (Tex.App.-Fort Worth 2004, no pet.) (“The effect of a judgment in an in rem or quasi in rem case is limited to the property that supports jurisdiction and does not impose a personal liability on the property owner.”). Thus, Oncor’s suit cannot be characterized as an impermissible action seeking to establish a contract’s validity, to enforce performance under a contract, to impose contractual liabilities, or otherwise “attempt to control state action by imposing liability on the State.” City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.2009) (quoting IT-Davy, 74 S.W.3d at 855-56). That Oncor seeks recovery of its costs of suit does not convert its action into one attempting to impose liability on DART and The T. See City of Dallas v. Jones, 331 S.W.3d 781, 785 (Tex.App.-Dallas 2010, no pet. h.) (confirming request for declaratory judgment and attorneys’ fees did not implicate immunity). Governmental immunity therefore is not implicated.
Waiver
If governmental immunity were implicated in this action, I would conclude such immunity has been waived. Gas and electric corporations have long had the right to condemn public land for purposes of sup*109plying power to individuals, the public, and municipalities. See Humble Pife Line Co. v. State, 2 S.W.2d 1018, 1022 (Tex.Civ.App.-Austin 1928, writ ref'd) (recognizing rights of public utility and service corporations to eminent domain over public lands; those statutory rights preceded pipeline statutes at issue); see also Lo-Vaca Gathering Co. v. Mo.-Kan.-Tex.R.R., 476 S.W.2d 732, 739 (Tex.Civ.App.-Austin 1972, writ ref'd n.r.e.) (legislature gave utilities and pipeline corporations extraordinary power of eminent domain to ensure the ability to cross public lands). That power has not been changed since first enacted, and it is presumed the legislature has adopted the courts’ construction of the laws it enacts. See Grapevine Excavation, Inc. v. Md. Lloyds, 35 S.W.3d 1, 5 (Tex.2000) (“It is a firmly established statutory construction rule that once appellate courts construe a statute and the Legislature re-enacts or codifies that statute without substantial change, we presume that the Legislature has adopted the judicial interpretation.”).
Section 181.004 of the codified utilities law expressly allows Oncor the right to condemn property of any person or corporation. Tex. Util.Code Ann. § 181.004 (West 2007). The Code Construction Act governs interpretation of the Texas Utilities Code, and we are to apply the code definitions when interpreting statutes “unless the statute or context in which the word or phrase is used requires a different definition.” Tex. Gov’t Code Ann. § 311.005 (West 2005). “Person” includes a “government or governmental subdivision or agency-” Id. § 311.005(2); see also Fort Worth & W. R.R. v. Enbridge Gathering (NE Tex. Liquids), L.P., 298 S.W.3d 392, 397 (Tex.App.-Fort Worth 2009, no pet.) (section 181.004 includes right of gas corporation to condemn property of rail district as governmental entity; construction limited to case-specific facts). The utilities code also includes the right of Oncor to “construct, maintain, and operate lines over, under, across, on, or along a state highway, a county road, a municipal street or alley, or other public property in a municipality.” Tex. Util.Code Ann. § 181.042 (West 2007).
Pursuant to section 311.034 of the Code Construction Act, we are informed that use of the term “person” in a statute is not a waiver of immunity. Tex. Gov’t Code Ann. § 311.034 (West Supp.2010). That same section emphasizes that this non-waiver provision is to help preserve the legislature’s interest in managing state fiscal matters. Id. These provisions are consistent with our supreme court decisions emphasizing that suits seeking to impose liability on a governmental unit are suits against the State, and are thus barred, and that waiver of governmental immunity requires clear and unambiguous language. See, e.g., IT-Davy, 74 S.W.3d at 854, 856. Yet the section 311.034 prescription that use of the term “person” in a statute does not waive immunity should not be used to implicate governmental immunity when, as here, utilities have had condemnation rights of public lands for almost 100 years. That construction would defeat the purpose of section 311.034 — not allowing a definition alone to create or waive legal rights when no such interpretation had existed previously. See, e.g., City of La-Porte v. Barfield, 898 S.W.2d 288, 294 (Tex.1995) (Code Construction Act definition of “person” to include governmental entities after 1985 not intended to change substantive law and waive governmental immunity not previously waived).
When, as here, the legislature has not provided “magic words” to waive immunity, the supreme court has identified four factors to use as aids to help guide our analysis in determining whether the legislature has clearly and unambiguously *110waived immunity: (1) whether a statutory provision would be “meaningless” unless immunity is waived; (2) whether the text and history of a statute leave room for doubt of intended waiver; (3) whether the legislature required the State to be joined in a lawsuit; and (4) whether the statute provides an objective limit on the State’s potential liability. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697-98 (Tex.2003).
As to the first factor, Oncor’s power to condemn public land pursuant to section 181.004, as interpreted since at least 1928, would be rendered meaningless if governmental entities can refuse to participate and avoid a condemnation proceeding based on immunity. See, e.g., State v. Montgomery Cnty., 262 S.W.3d 439, 442-43 (Tex.App.-Beaumont 2008, no pet.) (legislative grant of power to condemn public land waived immunity). Second, the utilities code and its history leave no room for doubt that Oncor has the right to condemn public land, which is a waiver of immunity. See Tex. Util.Code Ann. § 1.001(a) (West Supp.2010) (code adopted pursuant to program to codify laws and not intended as substantive change); Humble Pipe Line Co., 2 S.W.2d at 1022 (recognizing utility and public service corporations had right for years to condemn public land); Montgomery Cnty., 262 S.W.3d at 442-43 (power to condemn public land waives immunity); see also Tex. Gov’t Code Ann. § 311.034 (use of “person” in statute not waiver of immunity “unless the context of the statute indicates no other reasonable construction”). Third, DART and The T are mandatory parties to the condemnation proceeding as landowners pursuant to chapter 21 of the Texas Property Code. See Tex. Prop.Code Ann. § 21.012 (West Supp.2010). When the legislature requires that the State be joined in a lawsuit for which immunity ■ would otherwise attach, the legislature has intentionally waived the State’s immunity. See Taylor, 106 S.W.3d at 697-98. Finally, as discussed above, Oncor’s suit does not seek to impose any form of liability on DART and The T— they will in fact receive payment for the aerial rights in question. Considering the history and text of section 181.004 of the utilities code and chapter 21 of the property code, as well as the Taylor factors, any governmental immunity implicated pursuant to Oncor’s condemnation action has been waived.
For these reasons, I would conclude the trial court’s order denying DART and The T’s plea to the jurisdiction should be affirmed and therefore dissent.