CenterPoint Energy Houston Electric LLC v. Harris County Toll Road Authority

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JANUARY 20, 2006
January 16, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
__________________

No. 04-20992
_____________________

CENTERPOINT ENERGY HOUSTON ELECTRIC LLC; CENTERPOINT ENERGY ENTEX,
an Unincorporated Division of Centerpoint Energy Resources Corp.,

Plaintiffs - Appellees-Cross-Appellants,

versus

HARRIS COUNTY TOLL ROAD AUTHORITY; HARRIS COUNTY,

Defendants - Appellants-Cross-Appellees.

_________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
_________________________________________________________________

Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District
Judge.1

E. GRADY JOLLY, Circuit Judge:

This appeal raises the question whether CenterPoint Energy

Houston Electric and CenterPoint Energy Entex [collectively

“CenterPoint”] may collect from Harris County Toll Road Authority

and Harris County [collectively “Harris County”] costs of

relocating their utility facilities when Harris County constructed

the Westpark Tollway along the pre-existing Westpark Drive in

Houston, Texas. CenterPoint also seeks to collect attorney’s fees

and prejudgment interest. We hold that § 251.102 of the Texas

1
District Judge of the Western District of Louisiana,
sitting by designation.
Transportation Code requires reimbursement of CenterPoint’s

relocation costs, and that the district court failed to provide

reasoning sufficient for review of the denial of attorney’s fees or

prejudgment interest. Thus, we AFFIRM the district court’s grant

of summary judgment for CenterPoint awarding its relocation costs,

VACATE the denial of attorney’s fees and prejudgment interest, and

REMAND for proceedings not inconsistent with this opinion.

I

The material facts are undisputed. CenterPoint is a utility

provider servicing the City of Houston under a franchise agreement

originally executed in 1957. CenterPoint has no such agreement

with Harris County. CenterPoint maintains electric and gas

facilities within the rights-of-way of Houston’s city streets,

including Westpark Drive, now the Westpark Tollway. CenterPoint

has no easement rights in the property.

In June 2001, Harris County began constructing the Westpark

Tollway. The construction of the Tollway required CenterPoint to

relocate gas and electric utilities at a cost of over ten (10)

million dollars.2 All of the relocated facilities are within the

City of Houston. CenterPoint requested the relocation costs from

Harris County both before and after the relocation. Harris County

refused payment and this suit followed.

2
CenterPoint Energy Entex’s total relocation expenses were
$4,266,901.06. CenterPoint Energy Houston Electric, L.L.C’s total
relocation expenses were $5,989,772.91.

2
 Based on CenterPoint’s claims under both the United States

and Texas Constitutions, the action was removed to federal court

based on 28 U.S.C. §§ 1331 and 1367. The parties agreed that there

were no material issues of fact, and accordingly submitted cross-

motions for summary judgment. The district court denied Harris

County’s motion for summary judgment and granted summary judgment

for CenterPoint, holding that §§ 251.101 and 251.102 of the Texas

Transportation Code required Harris County to reimburse

CenterPoint’s relocation costs in the amounts of $5,989,772.91 and

$4,266,901.06, respectively, to CenterPoint Energy Houston Electric

and CenterPoint Energy Entex. The court ordered postjudgment

interest of 2.53% per annum. Both parties appealed: Harris County

appealed the judgment; CenterPoint appealed the district court’s

denial of attorney’s fees and prejudgment interest.

II

We review the grant or denial of a motion for summary judgment

de novo, respecting the same legal standards that the district

court applied to determine whether summary judgment was

appropriate. Lamar Adver. Co. v. Cont’l Cas. Co., 396 F.3d 654,

659 (5th Cir. 2005) (citations omitted). A summary judgment motion

is properly granted only when, viewing the evidence in the light

most favorable to the nonmoving party, the evidence presented

demonstrates “no genuine issue as to any material fact and that the

3
moving party is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

A

The primary issue presented is whether a Texas utility or the

county government must bear utility relocation costs caused by

county road construction. The “long-established common law

principle [requires] that a utility forced to relocate from a

public right-of-way must do so at its own expense.” Norfolk

Redevelopment & Housing Auth. v. Chesapeake & Potomac Tel. Co. of

Va., 464 U.S. 30, 34 (1983). Texas has adopted a similar rule

concluding that, because “the main purposes of roads and streets

are for travel and transportation . . . [,] it is clear that

[utilities may] be required to remove at their own expense any

installations owned by them and located in public rights of way

whenever such relocation is made necessary by highway

improvements.” State v. City of Austin, 331 S.W.2d 737, 741 (Tex.

1960). See also Benbrook Water & Sewer Auth. v. City of Benbrook,

653 S.W.2d 320, 323-24 (Tex. App. 1983); City of Grand Prairie v.

City of Irving, 441 S.W.2d 270, 273 (Tex. Civ. App. 1969); City of

Grand Prairie v. Am. Tel. & Tel. Co., 405 F.2d 1144, 1146 (5th Cir.

1969) (all holding as a general rule that utilities can be required

to relocate from the public right-of-way at their own expense, and

that such rule has been adopted by the state of Texas).3 When

3
The general rule is altered where the utility required to
relocate holds an ownership interest, such as an easement in the

4
applying this rule, “[t]here is no material difference . . .

between a utility company and a municipal corporation.” City of

Austin, 331 S.W.2d at 741. Thus, if this appeal were determined by

common law principles, CenterPoint would be required to bear its

own relocation costs. The common law, however, controls only where

there is no conflicting or controlling statutory law. See, e.g.,

Taylor v. Leonard, 275 S.W. 134 (Tex. Civ. App. 1925); 15 Am. Jur.

2d Common Law § 1 (2005); 67 Tex. Jur. 3d Statutes § 3 (2005). We

thus turn to examine the applicable statutes.

B

CenterPoint correctly contends that §§ 251.101 and 251.102 of

the Texas Transportation Code apply in this case.4 Section

property from which the utility facilities were relocated. See,
e.g., City of Grand Prairie, 405 F.2d at 1146 (holding that where
the utility facilities were located in a “private easement . . .
the general rule . . . has no application”) (citing Magnolia Pipe
Line Co. v. City of Tyler, 348 S.W.2d 537 (Tex. Civ. App. 1961)).
However, CenterPoint has no tangible property rights in the land
from which it was required to move its utility facilities.
4
Harris County contends that the general law of the
Transportation Code has essentially been trumped by the Harris
County Road Law [the Road Law] and the accompanying rules
promulgated by Harris County. The Road Law is a state legislative
act that provides a mechanism by which counties can acquire
property and construct roadways. Harris County argues that it was
by this mechanism, not by the process of § 251.101, that it
acquired the right-of-way. Because the rules promulgated by Harris
County under the authority of the Road Law require utilities to
bear relocation costs, Harris County argues that the district court
erred in denying its motion for summary judgment. Assuming without
deciding that the Road Law applies to property within the City of
Houston, we find the arguments of Harris County unpersuasive. See
Piney Point Village v. Harris County, 479 S.W.2d 358, 364 (Tex.
Civ. App. 1972)(finding that the situation before the court
involved only property outside the municipal limits of Houston and

5
251.101 provides a means for counties to acquire property to build

or improve roadways. As a part of that process, § 251.102 mandates

that “[a] county shall include the cost of relocating or adjusting

an eligible utility facility in the expense of right of way

declining to determine if the Road Law would apply to property
within the City).
We do not dispute that the Harris County Road Law is a
“special” law enacted by the Texas Legislature, see, e.g., id. at
364 (recognizing the Harris County Road Law as a “special act”),
nor do we take issue with the general principle that special acts
or provisions prevail over general ones in certain instances where
they are in conflict. See, e.g., TEX. GOV’T. CODE ANN. § 311.026(b)
(2005). Instead, we hold that any alleged conflict between the
Texas Transportation Code and the Harris County Road Law can be
harmonized.

Section 311.026 of the Texas Government Code, supplying the
rules of interpretation for Texas statutes, states that general and
specific statutes “shall be construed, if possible, so that effect
is given to both.” It is only where the conflict is
“irreconcilable” that the specific provision trumps the general
one. TEX. GOV’T CODE § 311.026(b). As to cost allocation, there is
no such conflict. While the Road Law provides a mechanism for
counties to acquire property for road construction, it is does not
speak to who bears the relocation costs incurred. Thus, construing
together the Transportation Code and the Road Law, § 251.102,
requiring the county to bear the relocation costs, is unaffected.

Conflict with the cost-allocation provision of § 251.102
arises only when “The Rules of Harris County, Texas For the
Construction of Facilities Within Harris County Road Rights-of-Way”
(promulgated by Harris County shortly before it began construction
on the Westpark Tollway in 2001) are considered. Section 8 provides
in part that utilities forced to relocate facilities in a right-of-
way must “bear the cost and expense of any change or alteration.”
CenterPoint correctly challenges the validity of this County Rule.
The rule is in conflict with § 251.102 of the Texas Transportation
Code. As such it appears invalid. Even were the rule valid,
Harris County has provided no authority demonstrating that a rule
or regulation promulgated by a county prevails over a general state
statute where they are in conflict. Nor has it demonstrated that
§ 33 of the Harris County Road Law extends to cover county rules
promulgated under the Road Law.

6
acquisition.” TEX. TRANSP. CODE ANN. § 251.102 (2005). As we are

clearly dealing with a “cost of relocating” resulting from the

“acqui[sition of] . . . a right-of-way,”5 the question is whether

CenterPoint is an “eligible utility facility” within the meaning of

§ 251.102.

Section 251 of the Transportation Code itself does not provide

any guidance as to the meaning of “eligible utility facility.”

Still we are required to “search out carefully the intendment of a

statute, giving full effect to all of its terms.” Tex. Highway

Comm’n. v. El Paso Bldg. & Const. Trades Council, 234 S.W.2d 857,

863 (Tex. 1951); see Bd. of Adjustment v. Wende, 92 S.W.3d 424, 432

5
Harris County argued on appeal that, based on authority
granted to it by the Harris County Road Law, it merely assumed an
existing right-of-way from the City of Houston, and did not
“acquire” it as articulated by §§ 251.101 and 251.102. We find no
indication that this argument was presented to the district court.
Indeed the district court stated that “[n]either party disputes
that Centerpoint had to relocate its facilities on Westpark Drive
only after the defendant acquired the City’s right of way.” As we
have often pointed out, “[w]e are a court of errors, and . . . a
district court cannot have erred as to arguments not presented to
it.” Miller v. Nationwide Life Ins. Co., 391 F.3d 698, 701 (5th
Cir. 2004) (citations omitted). Accordingly the argument is
forfeited by the failure to raise it in the court below and is
reviewed here only for plain error. See Crawford v. Falcon
Drilling Co., 131 F.3d 1120, 1123 (5th Cir. 1997) (“more recently
our Court has adopted the practice of reviewing unpreserved error
in a civil case using the plain-error standard of review”).

Under any standard of review, the argument that the property
has not been acquired within the meaning of § 251.101 is without
merit. Harris County clearly exercised some sort of process or
authority that passed control or ownership over the rights-of-way
at issue from the City of Houston to Harris County. Thus Harris
County “acquire[d] . . . a right-of-way” within the meaning of §
251.101.

7
(Tex. 2002) (Courts “must attempt to give effect to every word and

phrase if it is reasonable to do so.”). To give full meaning to

the modifier “eligible”, we turn, to the traditional tools of

statutory interpretation.

C

“The primary rule in statutory interpretation is that a court

must look to the intent of the legislature and must construe the

statute so as to give effect to that intent.” Union Bankers Ins.

Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994) (citations

omitted); see also Crimmins v. Lowry, 691 S.W.2d 582, 585 (Tex.

1985) (“A fundamental rule controlling the construction of a

statute is to determine, if possible, the intent of the legislature

as expressed in the language of that statute.”). To determine the

intent of the legislature, ordinarily we first look to the words of

the statute itself. See Hightower v. Texas Hosp. Ass’n., 65 F.3d

443, 448 (5th Cir. 1995) (“When courts interpret statutes, the

initial inquiry is the language of the statute itself.”). However,

we have examined the statute, as noted above, and find that the

words “eligible utility facility” remain ambiguous. If intent

cannot be determined from the words of the text we look to other

sources. In this case, those sources have been identified for us

in § 311.023 of the Texas Government Code, as discussed infra.

It is important as background to our analysis to understand

that Texas has been in the process of, and is currently nearing the

end of a general recodification of its laws. See Legal Research

8
Guides, Texas Statutes and Regulations,

http://library.law.smu.edu/resguide/TX-STATS.htm (last visited Nov.

22, 2005). This fact is relevant because in 1995, the Texas

Legislature passed Senate Bill 971, “The Texas Transportation Act”

[Transportation Act], which completed the recodification of Texas

law relating to transportation. The Transportation Act created the

Texas Transportation Code which includes the current §§ 251.101 and

251.102.6 See 1995 Tex. Sess. Law Serv. Chpt. 165 (S.B. 971)

(West) (now codified at TEX. TRANSP. CODE ANN. § 1.001, et. seq.).

The purpose of the Transportation Act was to provide a cogent and

6
The current version of each section is as follows:

251.101. Condemnation for County Road in
Municipality

(a) 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.

. . .

251.102. Cost of Relocating or Adjusting
Utility Facility

A county shall include the cost of relocating
or adjusting an eligible utility facility in
the expense of right-of-way acquisition.

TEX. TRANSP. CODE ANN. §§ 251.101, 251.102 (2005).

9
organized codification of Texas Transportation law -- not to create

substantive changes in the law.7

The Transportation Act gives specific instructions relating to

its interpretation. Section 1.002 of the Transportation Act, now

codified in the Transportation Code, provides that “Chapter 311,

Government Code (Code Construction Act), applies to the

construction of each provision in this code except as otherwise

7
Specifically the Transportation Act provides in section
1.001 that the purpose of the Transportation Act is as follows:

Sec. 1.001. PURPOSE OF THE ACT

(a) This code is enacted as a part of the
state's continuing statutory revision program,
begun by the Texas Legislative Council in 1963
as directed by the legislature in the law
codified as Section 323.007, Government Code.
The program contemplates a topic-by-topic
revision of the state's general and permanent
statute law without substantive change.

(b) Consistent with the objectives of the
statutory revision program, the purpose of
this code is to make the law encompassed by
this code more accessible and understandable
by:

(1) rearranging the statutes into a more
logical order;

(2) employing a format and numbering system
designed to facilitate citation of the law and
to accommodate future expansion of the law;

(3) eliminating repealed, duplicative,
unconstitutional, expired, executed, and other
ineffective provisions; and

(4) restating the law in modern American
English to the greatest extent possible.

10
expressly provided.” TEX. TRANSP. CODE ANN. § 1.002 (2005). Because

§ 251.102 does not “expressly provide[] otherwise” we will look to

chapter 311 of the Texas Government Code for interpretive aids.

Section 311.023 of the Texas Government Code provides a list

of “construction aids” to be used “[i]n construing a statute,

whether or not the statute is considered ambiguous on its face.”

TEX. GOV’T. CODE ANN. § 311.023 (2005).8 Two aids are particularly

pertinent here -- first, “the “title (caption), preamble, and

emergency provision”; and second “former statutory provisions,

including laws on the same or similar subjects.” Id. Each will be

considered in turn.

8
Section 311.023 provides:

In construing a statute . . . a court may
consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was
enacted;

(3) legislative history;

(4) common law or former statutory provisions,
including laws on the same or similar
subjects;

(5) consequences of a particular construction;

(6) administrative construction of the
statute; and

(7) title (caption), preamble, and emergency
provision.

TEX. GOV’T CODE ANN. § 311.023 (2005).

11
 (1)

We examine first the “title” and “preamble.” The

Transportation Act provides that as a part of the “[t]he [general

statutory revision] program,” it “contemplates a topic-by-topic

revision of the state's general and permanent statute law without

substantive change”. See 1995 Tex. Sess. Law Serv. Chpt. 165, §

1.001(a) (S.B. 971) (West) (now codified at TEX. TRANSP. CODE ANN. §

1.001(a)). Specifically the Transportation Act is “[a]n Act

relating to the adoption of a nonsubstantive revision of statutes

relating to transportation.” Id. at preamble (emphasis added).

Because the Transportation Act was not intended to create a

substantive change in the law, we must conclude that §§ 251.101 and

251.102 retain their meaning before codification.

We turn now to the second construction aid -- “former

statutory provisions, including laws on the same or similar

subjects” to discern the meaning of “eligible utility facility.”

(2)

The pre-codification versions of §§ 251.101 and 251.102 of the

Transportation Code were Texas Civil Statute Articles 6674n-3 and

6702-1. See TEX. TRANSP. CODE ANN. §§ 251.101, 251.102, Historical

and Statutory Notes (2005). One of these provisions, article

6674n-3, provides definition to the phrase “eligible utility

12
facility” and the other, article 6702-1, applies that phrase in the

context of county acquisitions.9

Our first step in determining the meaning of “eligible” is to

examine its use in article 6674n-3 entitled “Costs of relocating or

adjusting eligible utility facilities in acquisition of rights-of-

way”. TEX. CIV. STAT. art. 6674n-3 (1994). Although that provision

addressed acquisitions by the Texas Highway Department, the

provision gives meaning to the phrase “eligible utility facilities”

in the context of the relocation of utility facilities for roadway

projects. The provision states: “In the acquisition of all

highway rights-of-way by or for the Texas Highway Department, the

cost of relocating or adjusting utility facilities which cost may

be eligible under the law is hereby declared to be an expense and

cost of right-of-way acquisition.” TEX. CIV. STAT. art. 6674n-3, §

1. Thus, in article 6674n-3, the title and text combine to provide

that “eligible” describes a utility that incurs a relocation cost

as a result of a highway acquisition (by the Texas Highway

Department), which cost is eligible under the law for

reimbursement. Although this reasoning is still circular, we do

understand that “eligible” is a modifier of “cost”. And, although

the statute is in reference to acquisition by the Texas Highway

9
The interconnection of these former statutes is further
evidenced by the legislative reference to both article 6674n-3 and
article 6702-1 as the prior basis for the current § 251.102 of the
Transportation Code. See TEX. TRANSP. CODE ANN. § 251.102, Historical
and Statutory Notes, Prior Laws.

13
Department, when the acquisition of the right of way here was by

the county, the use of the same term in article 6702-1 gives

meaning to the phrase in the context of this case.

Article 6702-1 of the same title states: “The county should

include the cost of relocating or adjusting eligible utility

facilities in the expense of right-of-way acquisition.” TEX. CIV.

STAT. art. 6702-1 § 4.303 (1994). We can only conclude that the

Texas Legislature intended the term “eligible utility facilities”

to be interpreted and applied consistently in each of its uses in

the title. See Dallas County Cmty. College Dist. v. Bolton, ___

S.W.3d ___, 2005 WL 3241846 (Tex. 2005) (“We must interpret a

statute according to its terms, giving meaning to the language

consistent with other provisions in the statute.”); McIntire v.

Ramirez, 109 S.W.3d 741, 745 (Tex. 2003) (“[W]e will not give an

undefined statutory term a meaning that is out of harmony or

inconsistent with other provisions in the statute”); Barr v.

Bernhard, 562 S.W.2d 844, 849 (Tex. 1978) (“[O]ne provision will

not be given a meaning out of harmony or inconsistent with other

provisions, although it might be susceptible of such a construction

if standing alone.”). Consequently, the meaning of the term used

in both article 6702-1 and article 6674n-3 is the same.10 Thus,

10
The Texas Civil Statutes Article 6702-1 §§ 4.302, 4.303
provided:

Section 4.302 (a) The right of eminent domain
within the boundaries of a municipality with
prior consent of the governing body of the

14
where a utility facility incurs relocation costs resulting from a

“county acqui[sition of] real property,” through the process

outlined in article 6702-1 §4.302, and those relocation costs are

“eligible under the law,” that utility is an “eligible utility

facility” due county reimbursement. See TEX. CIV. STAT. art. 6702-1,

§§ 4.302, 4.303 (1994).

D

We have thus determined that §§ 251.101 and 251.102 were

intended to retain the same meaning of “eligible utility

facilities” as in the pre-codified statute.11 Additionally we have

municipality is conferred on counties of the
state for the purpose of condemning and
acquiring land, right-of-way, or easement in
land, private or public, except property used
for cemetery purposes, where the land, right-
of-way, or easement is in the judgment of the
commissioners court of the county necessary or
convenient to any road that forms or will form
a connecting link in the county road system or
a connecting link in a state highway.

. . . .

Sec. 4.303. The county should include the cost
of relocating or adjusting eligible utility
facilities in the expense of right-of-way
acquisition.

These provisions were repealed and replaced by §§ 251.101 and
251.102 of the Texas Transportation Code.
11
Harris County offers its own suggestions as to the meaning
of “eligible utility facilities” within the context of § 251.102.
Instead of looking to the history and development of § 251.102,
Harris County directs the court to a smattering of other provisions
located in other portions of the code as possible definitions.
Harris County has presented no cogent connection between any of
these proposed provisions and the context at hand.

15
concluded that the term “eligible utility facility” refers to a

utility incurring relocation costs that are “eligible under the

law” for reimbursement. We turn now to consider whether the costs

incurred by CenterPoint are such costs, that is to say, whether

CenterPoint is an “eligible utility facility” within the meaning of

§ 251.102.

(1)

The first requirement of § 251.102 is that the cost claimed

for reimbursement must have resulted from a county acquisition of

rights-of-way for highway construction. This requirement is

satisfied. Section 251.101 authorizes a county to “exercise the

power of eminent domain in a municipality . . . to condemn and

acquire real property, a right-of-way, or an easement in public or

private property . . . necessary or convenient to any road that

forms or will form a connecting link in the county road system.”

TEX. TRANSP. CODE ANN. § 251.101. Although Harris County contends

otherwise, its activity falls squarely within this statutory

provision: it acquired the rights-of-way along Westpark Drive

needed to construct the Westpark Tollway, a road that Harris County

admits is a “connecting link” between the City of Houston and the

surrounding county. See supra note 5. The parties do not dispute

that the construction of the Westpark Tollway on the rights-of-way

of the former Westpark Drive necessitated the relocation of

CenterPoint’s utility facilities. Thus CenterPoint satisfies the

16
requirement of § 251.102 as having incurred costs resulting from a

county acquisition for highway construction.

(2)

The second requirement under § 251.102 is that the costs

incurred must be “eligible under the law.” To give contextual

meaning to these words, we look to the Texas Supreme Court and the

case of State v. City of Austin, 331 S.W.2d 737 (Tex. 1960).12 In

City of Austin, the Texas Supreme Court addressed the validity of

a statute requiring similar repayment of relocation costs to a

utility.13 Although City of Austin addresses the validity of a

legislative mandate that the state repay a utility’s relocation

costs, the focus of the court’s analysis was on the constitutional

limitations of public reimbursement of relocation costs to private

utilities. As such we find no reason in law or fact to restrict

the principle of its holding to the state’s obligation;

12
City of Austin is the foundational case recognizing the
common-law rule that utilities must bear their own relocation costs
and examining the validity of statutes that create an exception.
See City of Austin, 331 S.W.2d 737; see also Benbrook Water & Sewer
Auth., 653 S.W.2d at 323; City of Grand Prairie, 405 F.2d at 1146
(both recognizing City of Austin as the “leading” and
“foundational” case in this area).
13
Specifically, the court in City of Austin examined Article
6674w-4 of the Texas Civil Statutes which provided, “[t]he
relocation of utility facilities necessitated by the improvement of
highways established as part of the National System of Interstate
and Defense Highways shall be made by the utility at the cost and
expense of the state provided such is eligible for Federal
participation.” See City of Austin, 331 S.W.2d at 740. The state
brought a declaratory action seeking to have the reimbursement of
relocation costs by government entities declared in violation of
the Texas Constitution.

17
consequently, the case is determinative of costs “eligible under

the law” for purposes of § 251.102 of the Transportation Code.

The petitioner in City of Austin, the State of Texas, sought

declaratory relief regarding the payment of relocation costs

incurred by a private utility. See City of Austin, 331 S.W.2d at

740-42. The petitioner contended that the state’s reimbursement to

a private utility constituted an illegal payment of public funds to

a private entity in violation of the Texas Constitution. Id. In

denying relief to the State, the Texas Supreme Court held that

“[t]he Legislature acting for the state has primary and plenary

power to regulate public roads and streets . . . [and i]t may

delegate that power to counties or municipal corporations.” Id. at

741. As in City of Austin, we have before us an instance where the

Legislature has empowered a governmental entity, Harris County, to

acquire the property necessary to construct highways. “That grant

of authority is conditioned, however, by the requirement that the

utilities be reimbursed for the expense which they incur.” Id. at

742. The court emphasized that a legislative act directing a

particular payment must be obeyed unless it violates the Texas

constitutional provision prohibiting “donation for a private

purpose.” A payment to a utility, the court stated, is not

prohibited by the Texas Constitution so long as “the statute

creating the right of reimbursement operates prospectively, deals

with the matter in which the public has a real and legitimate

interest, and is not fraudulent, arbitrary or capricious.” Id. at

18
743. Payment under § 251.102 of the Transportation Code to

CenterPoint satisfies this standard.

First, there is no contention that § 251.102 operates

retrospectively in this case -- nor could there be. The cost was

incurred long after the statute requiring payment was passed.

Second, the “public . . . has a direct and immediate interest in

the relocation of utility facilities which would otherwise

interfere with highway improvements.”14 City of Austin, 331 S.W.2d

at 745. Finally, there is no evidence or contention that the

statute, nor the proposed payment to CenterPoint, can be said to be

“fraudulent, arbitrary or capricious”.15 In sum, because relocation

costs incurred by CenterPoint are “eligible under the law” for

14
As the Texas court in City of Austin reasoned:

It is important to remember that utility
facilities are not placed in public streets
merely for the convenience of private
stockholders. . . . [L]ight, sewers, gas and
water works are among the common necessities
of modern cities, and it is a matter of common
knowledge that such plants cannot be
constructed and operated without running the
lines and mains along or across the streets. .
. . It is the interest of the public in
receiving utility services which supports the
right of utilities to use streets and highways
for that purpose in the first place.

City of Austin, 331 S.W.2d at 744.

15
The underlying premise of the holding in City of Austin is
that “no net gain accrues to the utility from the relocation of its
facilities in the manner and under the conditions prescribed by the
statute.” Id. at 742. We note that Harris County has not raised
a “betterment” challenge to the relocation costs of CenterPoint.

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reimbursement, CenterPoint is an “eligible utility facility” under

§ 251.102 of the Texas Transportation Code.

Accordingly, the district court’s judgment for CenterPoint

ordering the payment of relocation costs is affirmed.16

III

On cross-appeal Centerpoint contends that the district court

erred in denying its request for attorney’s fees and prejudgment

interest. A denial of attorney’s fees is reviewed for abuse of

discretion.17 Southwestern Bell Tel. Co. v. City of El Paso, 346

F.3d 541, 550 (5th Cir. 2003). The district court’s ruling on

prejudgment interest is also reviewed for abuse of discretion. See

Matter of Texas Gen. Petroleum Corp., 52 F.3d 1330, 1339 (5th Cir.

1995); see also Hale v. Fish, 899 F.2d 390, 404 (5th Cir. 1990)

(“the fate of [] prejudgment interest is in the hands of the

district court”).

16
CenterPoint also raises claims under the Texas and United
States Constitutions arising from its franchise agreement with the
City of Houston. As the merits of the case have been resolved
under §§ 251.101 and 251.102 of the Texas Transportation Code, we
do not reach these claims.
17
We recognize that there are specific standards of review to
be applied to the underlying findings supporting a district court’s
grant or denial of attorney’s fees. See Southwestern Bell Tel. Co.
v. City of El Paso, 346 F.3d 541, 550 (5th Cir. 2003) (holding that
“[t]he district court’s underlying findings of fact are subject to
review for clear error and its conclusions of law are reviewed de
novo”). Here, however, the district court summarily denied
attorney’s fees and prejudgment interest without any underlying
findings, merely stating that “[a]ll other relief not expressly
granted herein is denied.”

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 “A district court abuses its discretion if it bases its

decision on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Ross v. Marshall, 426 F.3d 745, 763

(5th Cir. 2005). In the case at hand the district court issued a

summary order denying “all other relief not expressly granted,”

which included both attorney’s fees and prejudgment interest.

Because no further discussion was provided, we are deprived of the

benefit of the district court’s reasoning and thus cannot conduct

the required review. See, e.g., Schwarz v. Folloder, 767 F.2d 125,

133 (5th Cir. 1985) (vacating and remanding on attorney’s fees

noting that “[a]lthough an award of attorney’s fees, like an award

of costs, is committed to the discretion of the trial court and can

only be reversed for an abuse of discretion, the trial court must

give reasons for its decisions . . .; otherwise we cannot exercise

meaningful review.”) (internal citation omitted). Consequently we

VACATE the judgment as it relates to prejudgment interest and

attorney’s fees and REMAND to allow the district court further to

consider these claims and to provide analysis and reasons for such

decisions as it may reach.

IV

In sum, §§ 251.101 and 251.102 of the Texas Transportation

Code are the applicable statutes to resolve the issue of

reimbursement presented in this case. However, we have found that

the statutes are ambiguous relative to the meaning of the term

“eligible utility facilities.” In accordance with the prescribed

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Texas rules of statutory construction, we have looked to the

statutes that preceded codification of the Texas Transportation

Code to determine that the term “eligible” describes a utility that

incurs relocation costs that result from county acquisitions of

highway rights-of-way authorized by statute and, second, that those

relocation costs are “eligible under the law” for reimbursement.

Both requirements are satisfied in this case: Because Harris

County acquired a right-of-way to create the Westpark Tollway

within the meaning of § 251.101, the costs were incurred as a

result of a statutorily authorized county acquisition, and because

§ 251.102 operates prospectively, deals with a matter in which the

public has a real and legitimate interest, and is not “fraudulent,

arbitrary or capricious”, City of Austin, 331 S.W.2d at 743, the

relocation costs are “eligible under the law” for reimbursement.

Consequently CenterPoint is an “eligible utility facility” under §

251.102 of the Texas Transportation Code, and we thus affirm the

award of these costs.

On CenterPoint’s cross-appeal, which seeks to reverse the

denial of attorney’s fees and prejudgment interest, we have

determined that the district court failed to provide the reasoning

necessary for us to conduct the required review, and thus we vacate

that portion of the judgment.

For these reasons we AFFIRM in part, VACATE in part and REMAND

to the district court only to reconsider attorney’s fees and

22
prejudgment interest and to provide reasons for such decisions as

it may reach.

AFFIRMED in part; VACATED in part; and REMANDED.

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