Energy and Environment Reporting for Texas

How Much Protection Do Texas Utilities Need From Law Suits?

Dave Fehling / StateImpact

In Houston, a biker crosses a utility right-of-way

Update: Rep. Jim Murphy filed a new bill February 18, 2013 that appears to still limit a utility’s liability but not in cases of “gross negligence.”

The electricity industry is among the biggest of the big spenders on lobbying the Texas legislature. So when bills are introduced giving the industry extraordinary protection from law suits, you can bet somebody’s going to cry foul.

“It’s a very unusual bill,” says Andrew Wheat at Texans for Public Justice, a corporate watchdog group in Austin.

Wheat’s talking about HB 404, introduced by a Republican representative from Houston, Sarah Davis. The bill is almost identical to HB 258 introduced by fellow Republican from Houston, Jim Murphy.

The Perfect Place for Trails

Courtesy State of Texas

Rep. Jim Murphy

Courtesy State of Texas

Rep. Sarah Davis

Both lawmakers say their bills are to allow the construction of hike and bike trails in Harris County on utility-owned rights-of-way, those big ribbons of green that cut across cities. Though primarily for the tall transmission line towers, the rights-of-way would make perfect places to build trails. (Houston voters recently approved $166 million in bonds to fund new trails.)

The owner of such rights-of-way in the Houston area is CenterPoint Energy. It has refused to allow the trails. Why? In an email to StateImpact, a CenterPoint media liaison said it would permit trails “if — and only if — the Texas Legislature provides additional liability protection to CenterPoint from people entering its rights of way.”

What has resulted, though, are bills that would give what lawyers say is almost blanket immunity to CenterPoint Energy should someone get hurt on company property while using it for recreation, even if CenterPoint was “grossly negligent.”

At the request of StateImpact, Richard Alderman, the associate dean of the University of Houston Law Center, took a look at the proposed legislation.

Giving Utilities Unlimited Protection

“It’s extremely broad and offers almost unlimited protection from liability beyond what any other entity doing the exact same thing under the exact same circumstances would have,” said Alderman.

He questioned why a new law was even necessary since Texas already has a “recreational use statute” which he says provides substantial protection for property owners when their land is used by others for things like hunting, hiking or biking.

Dave Fehling / StateImpact

Richard Alderman at the University of Houston Law Center

“Frankly, under the recreational liability statute, I doubt there are very many law suits based on somebody who has a hike and bike trail,” said Alderman.

What’s more, in North Texas, there are already miles of such trails according to Oncor, the Dallas utility company. A spokesperson said the company struck agreements with municipalities including Richardson, Allen, Dallas and Plano to help build the trails on Oncor’s rights-of-way. You can watch Oncor’s CEO dedicate one of the trails.

But there’s an additional twist to the two bills proposed by the two state representatives from Houston. Rep. Jim Murphy says his bill is just for Harris County. Rep. Sarah Davis’s however, extends the reach to “adjacent” counties. And that’s what has attracted the attention of industry critics.

Fishing for Controversy?

Dave Fehling / StateImpact

Road in Chambers County leading to CenterPoint conference center

Because just outside the eastern boundary of Harris County, CenterPoint has ownership of a fishing lodge known as “The Pond” (which CenterPoint calls the Cedar Bayou Conference Center). According to a 2008 report by Houston’s KPRC-TV, the lodge — located near a power plant on Trinity Bay in Chambers County  — has been used by CenterPoint to entertain public officials.

“That’s why immediately in some minds CenterPoint came to mind,” said Andrew Wheat with Texans for Public Justice (which has released reports detailing what the electric industry is a leading spender on lobbying at the statehouse). He figures that including “adjacent” counties in the bill would give CenterPoint protection no other such landowners would enjoy.

“Why not make the bill apply to all private landowners in that position and not narrowly tailor it to what appears to be one individual landowner,” Wheat said.

CenterPoint says it’s a non-issue.

“The Cedar Bayou Conference Center is not open and accessible to the public and is not dedicated to recreational use; therefore it is not impacted by the proposed legislation,” said the company’s Alicia Dixon in an email to StateImpact.

Rep. Davis, sponsor of HB 404, agreed to be interviewed by StateImpact but then canceled, citing a lack of time in her schedule.

Changes to Allow Law Suits

The sponsor of the other almost identical HB 258, Rep. Murphy, said he’s been working on the legislation for six years and that it has nothing to do with favoritism for CenterPoint.

“The efforts to get these rights-of-way used is completely a grassroots effort by people like myself that are runners.I have friends who are cyclists,” Murphy told StateImpact.

Murphy said CenterPoint deserves protection in exchange for allowing trails on its land, but he conceded that the bill in its initial form went too far in limiting virtually all liability. So he says changes are being made that will allow law suits “in very limited circumstances.”

“I think that the new compromise is going to be much, much more effective in garnering the support its going to take to make it a state law.”



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