NUMBER 13-11-00319-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
GONZALEZ COUNTY UNDERGROUND
WATER CONSERVATION DISTRICT AND
SAN ANTONIO WATER SYSTEM, Appellants,
v.
WATER PROTECTION ASSOCIATION, Appellee.
On appeal from the 25th District Court
of Gonzales County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellants, Gonzales County Underground Water Conservation District (“County
Water District”) and the San Antonio Water System (“SA Water System”), appeal the
trial court’s denial of their respective plea to the jurisdiction and motion to dismiss for
lack of jurisdiction. The Water Protection Association (“WPA”), appellee, sought judicial
review of the County Water District’s order granting the SA Water System’s applications
for groundwater permits. In their pleas to the jurisdiction, the County Water District and
the SA Water System asserted that the WPA did not timely file its request for rehearing,
and therefore failed to exhaust administrative remedies. In a single issue, the County
Water District and the SA Water System complain that the trial court erred in denying
their pleas to the jurisdiction by finding that the WPA satisfied the required statutory
prerequisite (timely seeking rehearing) under Chapter 36 of the Texas Water Code
before seeking judicial review. We vacate the trial court’s judgment and dismiss the
cause for want of jurisdiction.1
I. FACTUAL AND PROCEDURAL BACKGROUND
The County Water District provides for the conservation, preservation, protection,
recharging, and prevention of waste of groundwater, and of groundwater reservoirs or
their subdivisions, and seeks to control subsidence caused by withdrawal of water from
those groundwater reservoirs or their subdivisions. See TEX. W ATER CODE ANN.
§ 36.0015 (West 2008). As a groundwater conservation district, it is responsible for
issuing permits for drilling wells within its boundaries. See id. at § 36.113 (West 2008).
In June 2006, the SA Water System filed permit applications with the County
Water District, seeking authorization to construct and operate groundwater wells and to
transport water produced from those wells to locations outside the County Water
1
The County Water District and SA Water System are both governmental entities. See TEX.
CONST. Art. XVI, § 59; TEX. CIV. PRAC. & REM. CODE ANN. §101.001(3) (West 2011). Therefore, this court
has jurisdiction to consider the interlocutory appeal. TEX. CIV. PRAC. & REM. CODE ANN. §51.014(a)(8)
(West 2011).
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District’s boundaries. The WPA and others protested the issuance of the permits. The
County Water District appointed a hearings examiner, and after a contested evidentiary
hearing, the hearing examiner issued his report on April 30, 2010, recommending
approval of the SA Water System’s requested permits. On July 13, 2010, the County
Water District approved the hearing examiner’s report and granted the SA Water
System’s permits.
On July 30, 2010, the WPA emailed a copy of its request for rehearing to the
County Water District’s outside counsel. Counsel, however, was not authorized to
accept filings on the County Water District’s behalf, and the WPA did not file its request
for rehearing in the County Water District’s office on or before August 2, 2010, the
statutory deadline. On August 3, 2010, the County Water District’s counsel forwarded
the emailed copy of the request for rehearing to the County Water District’s general
manager, which was then stamped “received.” On August 6, 2012, the County Water
District received in its office an incomplete paper copy of the WPA’s request for
rehearing. The County Water District did not take any action on the WPA’s request for
rehearing.
On December 21, 2010, the WPA filed this lawsuit against the County Water
District, seeking judicial review of the County Water District’s issuance of permits to the
SA Water System. See TEX. W ATER CODE ANN. § 36.251 (West 2008). The County
Water District filed a plea to the jurisdiction, arguing that the WPA failed to exhaust all
administrative remedies before filing this lawsuit, and specifically that its failure to timely
file a request for rehearing deprived the trial court of subject matter jurisdiction to
consider the WPA’s judicial appeal. See id., § 36.413(c) (West 2008). The SA Water
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System filed an original petition in intervention and a motion to dismiss, arguing in
addition to the above, that the trial court lacked jurisdiction because sovereign immunity
was not waived because statutory prerequisites to a suit against a governmental entity
are jurisdictional requirements. See TEX. GOV’T CODE ANN. § 311.034 (West 2011)
(Code Construction Act). The WPA responded by asserting it timely filed its request for
rehearing by emailing a copy of its request for rehearing to the County Water District’s
outside counsel. The WPA contends it thereby “substantially complied” with the
statutory requirements so as to invoke the jurisdiction in the court. See TEX. W ATER
CODE ANN. § 36.412 (West 2008).
After an evidentiary hearing, the trial court found that the WPA “satisfied the
statutory prerequisites under Chapter 36 of the Texas Water Code necessary to obtain
judicial review of the County Water District’s decision to approve [the SA Water
System’s] applications for groundwater permits.” The trial court concluded that it had
subject matter jurisdiction and denied the County Water District’s plea to the jurisdiction
and the SA Water System’s motion to dismiss.2
II. STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of
action without regard to whether the claims asserted have merit.” Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s
subject matter jurisdiction over a pleaded cause of action. See Texas Dep’t of Parks
2
The trial court filed handwritten findings of fact and conclusions of law. The findings, however,
pertain to undisputed facts: (1) the WPA’s Request for Rehearing was not physically located in the
County Water District’s office by the August 2, 2011 filing deadline; (2) the County Water District’s
counsel received a copy of the WPA’s Request for Rehearing on July 30, 2011; and (3) the County Water
District, though communication among the parties, was aware of the Request for Rehearing by the filing
deadline. Findings of fact serve no useful purpose when no disputed fact issue exists. See Goldberg v.
Comm’n for Lawyer Discipline, 265 S.W.3d 568, 579 n.14 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied); Haddix v. Amer. Zurich Ins. Co., 253 S.W.3d 339, 345–46 (Tex. App.—Eastland 2008, no pet.).
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and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Cameron County v. Ortega,
291 S.W.3d 495, 497 (Tex. App.—Corpus Christi 2009, no pet.). We review a trial
court’s ruling on a plea to the jurisdiction de novo. Westbrook v. Penley, 231 S.W.3d
389, 394 (Tex. 2007). See also U. Lawrence Boze & Assoc. P.C. v. Harris County App’l
Dist., No. 01–10–00016–CV, 2011 WL 3524209, at *4 (Tex. App.—Houston [1st Dist.]
Aug. 11, 2011, no pet) (applying the same standard of review to a motion to dismiss for
lack of jurisdiction).
“The meaning of a statute is a legal question, which we review de novo to
ascertain and give effect to the Legislature’s intent.” Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009). “Where text is clear, text is determinative
of intent.” Id. “This general rule applies unless enforcing the plain language of the
statute would produce absurd results.” Id. “Therefore, our practice when construing a
statute is to recognize that the words [the Legislature] chooses should be the surest
guide to legislative intent.’” Id. We strictly construe statutes waiving sovereign and
governmental immunity. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex. 2006).
“[A] statute shall not be construed as a waiver of sovereign immunity unless the waiver
is effected by clear and unambiguous language.” TEX. GOV'T CODE ANN. § 311.034; see
also Castillo v. Tex. Bd. of Prof'l Engrs, 03-10-00124-CV, 2010 WL 5129127, at *2 (Tex.
App.—Austin Dec. 14, 2010, no pet.) (mem. op., not designated for publication).
III. ANALYSIS
The sole issue before us is whether the WPA’s failure to timely file its motion for
rehearing in the County Water District’s office deprived the trial court of jurisdiction to
hear the WPA’s action for judicial review of the County Water District’s permitting order.
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It is undisputed that the WPA’s request for rehearing was not received in the County
Water District’s office on or before August 2, 2010.
1. Failure to Exhaust Administrative Remedies
Where a cause of action and remedy for its enforcement are derived not from the
common law but from the statute, the statutory provisions are mandatory and exclusive,
and must be complied with in all respects or the action is not maintained. Igal v.
Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 83 (Tex. 2008); In re Edwards Aquifer
Auth., 217 S.W.3d 581, 588 (Tex. App.—San Antonio 2006, no pet.). A person may
obtain judicial review of an administrative order only if a statute provides the right to
judicial review. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d
591, 599 (Tex. 2001); In re Edwards Aquifer Auth., 217 S.W.3d at 587–88. The
exhaustion of administrative remedies is a prerequisite to the trial court’s jurisdiction.
See Thomas v. Long, 207 S.W.3d 334, 340–342 (Tex. 2006); In re Edwards Aquifer
Auth., 217 S.W.3d at 588; Hill v. Board of Trustees, 40 S.W.3d 676, 678 (Tex. App.—
Austin 2001, no pet.). A motion for rehearing is one of the administrative remedies a
plaintiff must exhaust before seeking judicial review. See Hill, 40 S.W.3d at 679;
Wilmer–Hutchins Indep. School Dist. v. Brown, 912 S.W.2d 848, 854 (Tex. App.—
Austin 1995, writ denied). The motion for rehearing is intended to notify the agency of
the alleged error so the agency may correct or defend the error. Suburban Util. Corp. v.
Public Util. Comm'n, 652 S.W.2d 358, 365 (Tex. 1983).
The WPA sought judicial review of the County Water District’s permitting order,
which is governed by Chapter 36 of the Texas Water Code. See In re Edwards Aquifer
Auth., 217 S.W.3d at 588. Section 36.251 of the Texas Water Code provides: “[a]
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person . . . affected by or dissatisfied with . . . any rule or order made by the district is
entitled to file suit against the district . . . The suit may only be filed after all
administrative appeals to the district are final.” TEX. W ATER CODE ANN. § 36.251. See
also Thomas, 207 S.W.3d at 340–42. Section 36.412(a) provides: “An applicant in a
contested or uncontested hearing on an application or a party to a contested hearing
may administratively appeal a decision of the board on a permit or permit amendment
application by requesting written findings and conclusions or a rehearing before the
board not later than the 20th day after the date of the board's decision.” Id. §36.412(a)
(West 2008). Section 36.412(c) provides: “A request for rehearing must be filed in the
district office and must state the grounds for the request. If the original hearing was a
contested hearing, the person requesting a rehearing must provide copies of the
request to all parties to the hearing.” TEX. WATER CODE ANN. § 36.412(c) (emphasis
added). Section 36.413(c) provides: “An applicant or a party to a contested hearing
may not file suit against the district under Section 36.251 if a request for rehearing
was not filed on time.” TEX. W ATER CODE ANN. § 36.413(c) (emphasis added).
Section 36.101 provides statutory authority for the enactment of the District’s
administrative rules, after notice and hearing. See id. § 36.101 (West 2011). The
County Water District’s rules provide:
“District” shall mean the Gonzales County Underground Water
Conservation District, maintaining its principle office in Gonzales, Texas.
The District’s headquarters is at 920 Saint Joseph, Room 129, P. O. Box
1919, Gonzales, Texas 78629, Phone 830-672-1047 where applications,
reports and other papers are to be filed or sent to the District . . . .
District Rule 2.0 (adopted April 13, 2004) (emphasis added).
Applications, requests or other papers or documents required or permitted
to be filed under these Rules or by law must be received for filing at the
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District Office at Gonzales, Texas, within the time limit, if any, for such
filing. The date of receipt and not the date of posting is determinative.
Id. at Rule 2.E (adopted April 13, 2004) (emphasis added).
The WPA did not file its request for rehearing in the County Water District’s office
within the twenty day period. TEX. W ATER CODE ANN. § 36.412(c). See also Thomas,
207 S.W.3d at 340–42. The prerequisites of timely filing the request for rehearing in the
County Water District’s office are mandatory and exclusive, and must be complied with
in all respects; otherwise, an action for judicial review will not be maintainable. See Igal,
250 S.W.3d at 83. In strictly construing the foregoing unambiguous statutory provisions
and rules, we hold that the WPA did not exhaust its administrative remedies when it
failed to timely file its request for rehearing in the County Water District’s office, prior to
filing its action for judicial review. See Jackson, 192 S.W.3d at 770; see also In Heart
Hosp. IV, L.P., 116 S.W.3d 831, 835 (Tex. App.—Austin 2003, pet. denied) (concluding
fourteen day filing deadline was a jurisdictional prerequisite for seeking judicial review);
Carrington v. Texas Workforce Comm’n., Cause No. 01-04-00424-CV, 2006 Tex. App.
WL 66455, at *2 (Tex. App.—Houston [1st Dist.] Jan. 12, 2006, no pet.) (same).
2. Substantial Satisfaction
The WPA argues that it substantially satisfied the statutory requirements when it
served a copy of its request for rehearing on the County Water District’s counsel.3
Relying upon the holding in Simmons v. Texas State Board of Dental Examiners, the
WPA argues that the trial court’s jurisdiction can be invoked when the plaintiff
substantially satisfies the statutory filing requirements. See 925 S.W.2d 652, 654 (Tex.
1996). We disagree.
3
During the hearing, the WPA presented uncontroverted evidence of its efforts to comply with the
deadline, and the problems that it incurred in attempting to do so.
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Simmons is a case wherein a plaintiff was in a procedural conundrum created by
inconsistent filing deadlines in conflicting statutes. See id. at 653. Under the Dental
Practice Act (“DPA”), a dentist had thirty days from the date of license-revocation notice
to seek judicial review in district court. See id. (citing TEX. REV. CIV. STAT. art. 4548h, §
3(a) (repealed)). The Administrative Procedure Act (“APA”), however, mandated that an
aggrieved person file a timely motion for rehearing with the board before filing an appeal
to the district court, and allowed administrative agencies forty-five days to act on a
motion for rehearing before it was overruled by operation of law. See id. (citing TEX.
GOV’T CODE ANN. § 2001.146(c) (West 2008). The Supreme Court opined that
Simmons faced a conflict between the DPA’s and the APA’s filing deadlines and that he
made every attempt to comply with both. Simmons, 825 S.W.2d at 654. Consequently,
it held that his motion to reinstate substantially satisfied the judicial review requirements
of the APA and invoked the district court’s appellate jurisdiction. Id.
In the instant case, however, no statutory conflict exists. Rather, the WPA is
arguing that it did not have to serve the County Water District as statutorily required but
rather, that it could substantially satisfy the statutory requirements by emailing a copy of
its request for rehearing to the County Water District’s counsel. Statutes waiving
sovereign immunity are to be strictly construed and do not provide for alternative filings
or substantial satisfaction. See Igal, 250 S.W.3d at 83. The Texas Code Construction
Act provides:
In order to preserve the legislature's interest in managing state fiscal
matters through the appropriations process, a statute shall not be
construed as a waiver of sovereign immunity unless the waiver is effected
by clear and unambiguous language. In a statute, the use of "person," as
defined by Section 311.005 to include governmental entities, does not
indicate legislative intent to waive sovereign immunity unless the context
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of the statute indicates no other reasonable construction. Statutory
prerequisites to a suit, including the provision of notice, are
jurisdictional requirements in all suits against a governmental entity.
TEX. GOV’T CODE § 311.034 (emphasis added).
In 2005, the Texas Legislature added the above emphasized language,
“[s]tatutory prerequisites to a suit, including the provision of notice, are jurisdictional
requirements in all suits against a governmental entity,” making it clear that the decision
to waive sovereign immunity rests with the Legislature and that a court does not have
jurisdiction over a case if a plaintiff has not met the statutory prerequisites for a waiver.
See In re U. S. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010); Castillo, 2010 WL
5129127, at *7. The bill analysis to the 2005 amendment further provides:
Lawsuits against the government have the potential to cost the
government significant amounts of money. Some courts, however, have
infringed on the power of the Legislature to waive sovereign immunity by
refusing to dismiss a case in which a plaintiff had not met the statutory
prerequisites to bring suit against a government entity . . . The bill would
affirm that a court would be required, due to lack of jurisdiction, to dismiss
any case for which the plaintiff had not met statutory requirements . . .
This would save government entities a significant amount of money in
these cases as they would be spared from having to pay litigation
expenses through the end of trial . . . The bill would not affect anyone’s
substantive rights, but simply would clarify the procedure required to sue a
government entity.
See House Research Organization, Bill Analysis, Tex. H.B. 2988, 79th Leg., R.S.
(2005).
However, even before the enactment of section 311.034, Texas courts denied
jurisdiction when a statute was not strictly followed. In Mercer v. Woods, a vendor of
intoxicating liquors contested a special election held to determine whether intoxicating
liquors should be prohibited in the county. 33 Tex. Civ. App. 642, 645–46, 78 S.W. 15,
17 (Waco 1903, writ ref’d). The original petition was timely filed and served upon the
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defendants, but the plaintiffs did not comply with the statutory requirement of timely
serving the defendants with written notice of plaintiff’s intention to contest the election,
together with a statement in writing of the grounds relied upon to contest said election.
See id. at 17. The Waco Court granted the defendants’ pleas to the jurisdiction,
holding:
It is true that the county attorney, who is one of the defendants, had actual
notice of the grounds relied on by the plaintiffs to contest the election, but
actual notice could not take the place of anything required by the statute in
order to confer jurisdiction of the subject matter. Jurisdiction over the
person may be obtained without the service of citation when the defendant
waives such service; but that rule has no application when considering a
question of jurisdiction over the subject matter. Jurisdiction of the latter
class cannot be obtained by consent and can only exist when the law
conferring such jurisdiction has been complied with.
See id. at 17.
Likewise, in Mendez v. City of Amarillo, the plaintiffs sued the City, and not the
mayor, to contest an election ballot which combined two proposed amendments to the
city charter into a single proposition. No. 07-07-0207-CV, 2008 WL 2582987, at *2
(Tex. App.—Amarillo June 30, 2008, no pet.). The plaintiffs served the mayor with
service of citation in their suit against the city. The governing statute, Texas Election
Code sections 233.003 and 233.006 required that the mayor be named in the suit as the
contestee within a prescribed period of time. See TEX. ELEC. CODE ANN. §§ 233.003
and 233.006 (West 2010). The plaintiff amended their lawsuit to name the mayor
outside the statutorily prescribed period of time. The court granted the City’s plea to the
jurisdiction, holding that strict compliance with the requirements of the statute of timely
suing the mayor as the contestee was necessary to invoke the district court’s
jurisdiction. See id., 2008 WL 2582987, at **1–2 (citing TEX. GOV’T CODE § 311.034).
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The Amarillo Court also held that even though the mayor had notice of the suit, that
notice was insufficient to meet the requirements of the statute. See id. (citing Mercer,
78 S.W. at 17).
We hold that the WPA did not exhaust its administrative remedies when it failed
to timely file its request for rehearing in the County Water District office and that the
WPA’s failure to exhaust its administrative remedies deprived the trial court of
jurisdiction to hear the WPA’s petition for judicial review of the County Water District’s
permitting order. We sustain the County Water District’s and SA Water System’s issues
on appeal.
IV. CONCLUSION
We vacate the trial court’s judgment and dismiss the cause for want of
jurisdiction.
____________________________
GREGORY T. PERKES
Justice
Delivered and filed the
31st day of May, 2012.
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