Reversed and Remanded and Majority and Concurring Opinions filed May 12, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01311-CV

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THE BURLINGTON NORTHERN AND

SANTA FE RAILWAY COMPANY, Appellant

V.

THE CITY OF HOUSTON, Appellee

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On Appeal from the County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 789,496

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C O N C U R R I N G   O P I N I O N

The dismissal in this case could only properly be granted and affirmed based on a jurisdictional issue, such as governmental immunity from suit.  Preemption is not such an issue, either generally,^[1]or in this particular case, because the county court will have subject matter jurisdiction over the condemnation action, even if some portions of the condemnation statute are preempted.  Beyond recognizing that the dismissal cannot properly be affirmed on the preemption issue in any event (because it is not jurisdictional), any ruling in this appeal on preemption would go beyond the jurisdictional issues governing the dismissal to reach the merits of the underlying claims and thus be an advisory opinion which we have no jurisdiction to issue.^[2]  Therefore, our decision in this appeal should not address the preemption issue on the merits.

/s/        Richard H. Edelman

Justice

Judgment rendered and Opinion filed May 12, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.  (Yates, J., majority.)