The Attorney General of Texas
June 13, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Gib Lewis Opinion No. JM-164
P. 0. BOX 12546
Austin, TX. 76711. 2548
Speaker
5121475.2501 Texas House of Representatives Re: Whether actions taken
Telex 9101674-1367 P. 0. Box 2910 pursuant to section 12.051 of
Telecopier 512i475-0266 Austin, Texas 78769 the Water Code are subject to
the Administrative Procedure
714 Jackson, Suite 700 Act, art. 6252-13a. V.T.C.S.
Dallas, TX. 75202.4506
2141742.6944 Dear Speaker Lewis:
You ask the following question:
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793
9151533.3464 Are actions taken pursuant to the provision of
section 12.051 of the Texas Water Code subject to
the procedural requirements of article 6252-13a,
1 Texas, Suite 700 V.T.C.S., relating to administrative hearings?
muston. TX. 77002-3111
713223.5866
We conclude that the feasibility order issued pursuant to the
provisions of section 12.051 of the Water Code is not subject to the
606 Broadway. Suite 312 procedural requirements on article 6252-13~1, V.T.C.S., the
Lubbock, TX. 79401.3479 Administrative Procedure and Texas Register Act [hereinafter APTRA]
6Oiil747-5236
relating to administrative hearings. A finding as to feasibility made
by the board is not a "contested case" and, therefore, does not fall
4309 N. Tenth, Suite B within the ambit of APTRA.
McAllen, TX. 76501-1665
512/662-4547
You inform us that the Texas Water Development Board on October
14, 1983 approved a flood drainage plan proposed by the U. S. Army
200 Main Plaza, Suite 400 Corps of Engineers for the Lower Rio Grande River Basin. This action
San Antonio, TX. 76205.2797 was taken pursuant to authority conferred by section 12.051 of the
512/225.4191 Water Code. Several persons opposed the board's approval of the plan,
one of whom filed a motion for rehearing with the board on October 28,
An Equal Opportunity/
1983. By letter dated November 9, 1983, the board informed the person
Affirmative Action Employer filing the motion for rehearing that its decision was final as
provided in section 12.051(f), Water Code, and that the proceedings
set forth in section 12.051 do not fall within the ambit of article
6252-13a, V.T.C.S., Administrative Procedure and Texas Register Act.
Section 12.051 of the Water Code sets forth the following:
012.051. Federal Projects
Honorable Gib Lewis - Page 2 (JM-164)
(a) In this section:
(1) 'Federal project' means an
engineering undertaking or work to construct,
enlarge, or extend a dam, lake, reservoir, or
other water-storage or flood-control work or s
drainage, reclamation, or canalization
undertaking or any combination of these
financed in whole or in part with funds of the
United States.
(2) 'Engineering report' means the plans,
data, profiles, maps, estimates, and drawings
prepared in connection with a federal project.
(3) 'Federal agency' means the Corps of
Engineers of the United States Army, the Bureau
of Reclamation of the Department of Interior,
the Soil Conservation Service of the Department
of Agriculture, the United States Section of
the International Boundary and Water
Commission, or any other agency of the United
States, the function of which includes the
conservation, development, retardation by
impounding, control, or study of the water
resources of Texas or the United States.
(b) When the governor receives an engineering
report submitted by a federal agency seeking the
governor's approval of a federal project, he shall
immediately forward the report to the department
for its study concerning the feasibility of the
federal project.
(c) The board shall hold a public hearing to
receive the views of persons and groups who might
be affected by the proposed federal project. The
board shall publish notice of the time, date,
place, nature, and purpose of the public hearing
once each week for two consecutive weeks before
the date stated in the notice in a newspaper
having general circulation in the section of the
state where the federal project is to be located
or the work done.
(d) After hearing all the evidence both for
and against approval of the federal project, the
board shall enter its order approving or -.
disapproving the feasibility of the federal
p. 720
Honorable Gib Lewis - Page 3 (JM-164)
project, and the order shall include the board's
reasons for approval or disapproval.
(=) In determining feasibility, the board
shall consider, among other relevant factors:
(1) the effect of the federal project
on water users on the stream as certified
by the commission;
(2) the public interest to be served;
(3) the development of damsites to the
optimum potential for water conservation;
(4) the integration of the federal
project with other water conservation
activities;
(5) the protection of the state's
interests in its water resources; and
(6) the engineering practicality of the
federal project, including cost of
construction, operation, and maintenance.
(f) The board shall forward to the governor a
certified copy of its order. The board's finding
that the federal project is either feasible or not
feasible is final, and the governor shall notify
the federal agency that the federal project has
been either approved or disapproved.
(g) The provisions of this section do not
apply to the state soil conservation board as long
as that board is designated by the governor as the
authorized state agency having supervisory
responsibility to approve or disapprove of
projects designed to effectuate watershed pro-
tection and flood-prevention programs initiated in
cooperation with the United States Department of
Agriculture. (Emphasis added).
Section 12.051 of the Water Code was previously codified as section
6.073 of the Water Code. Section 6.073 replaced now-repealed article
7472e. V.T.C.S. Article 7472e. V.T.C.S., was enacted in 1955. Each
enactment was substantially similar with regard to the matters at
issue in the instant request. Therefore, section 12.051, in its
original enactment, was passed prior to the adoption of APTIiA.
p. 721
Honorable Gib Lewis - Page 4 (JM-164)
Article 6252-13a. V.T.C.S., [APTRA] provides in sections 13 and
19 for agency action and for judicial review, respectively of a "final
decision" or "order adverse to a party" in a "contested case."
Section 16 sets forth what constitutes s final decision or order, the
procedure for filing a motion for rehearing, and that such a motion is
a prerequisite to appeal. APTRA at section 3(2) declares that
'[clontssted case' means a proceeding, including
but not restricted to ratemaking and licensing, in
which the legal rights, duties, or privileges of a
party are to be determined by an agency after an
opportunity for adjudicative hearing. (Emphasis
added).
Neither section applies if the proceeding does not constitute a
"contested case" as defined in section 3(2). A "final administrative
order" is one that leaves nothing open for future disposition; if a
rieht is made contineent
- uuon
. the occurrence of some future event. the
order is not final. Railroad Commission v. Brazos River Gas Company,
594 S.W.2d 216, 218 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.);
Railroad Commission v. Air Products and Chemicals, Inc., 594 S.W.2d
219 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.).
In Big D. Bamboo, Inc. v. State, 567 S.W.2d 915 (Tex. Civ. App. -
Beaumont 1978, no writ), the court held that a "contested case" within
the meaning of APTRA:
must be one in which the legal rights, duties, or
privileges are to be determined by au agency after
an opportunity for adjudicative hearing. The word
'adjudicate' is defined in Black's Law Dictionary
63 (4th rev. ed. 1968) as '[t]o settle in the
exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest
sense. United States v. Irwin, 127 U.S. 125 . . .
and Street v. Benner, 20 Fla. 700.' Accordingly,
it appears to us that the hearing required by
LAPTRAI must be one in which the agency conducting
such hearing will, by a final and determinative
order, decide the legal rights, duties, or
privileges of the appellants, and in the absence
of an appeal therefrom will be a final and binding
decree with respect to any such legal rights,
duties, or privileges.
Id. at 918. This language indicates that the administrative
proceeding at issue here is not an "adjudicative hearing." This
hearing did not as a final matter determine the "rights, privileges
p. 722
Honorable Gib Lewis - Page 5 (JM-164)
and duties" of any person. That determination is within the sole
authority of the federal government.
Moody v. Texas Water Commission, 373 S.W.2d 793 (Tex. Civ. App. -
Austin 1963, writ ref'd n.r.e.), supports our conclusion that this
administrative hearing is not a "contested case" within the meaning of
APTRA. Moody involved a challenge to a Texas Water Commission
feasibility order issued pursuant to article 7472e. V.T.C.S., the
now-repealed predecessor to section 12.051 of the Water Code,
regarding a federal water impoundment project. In rejecting a claim
that such order amounted to a denial of due process in violation of
both the Texas and federal Constitutions, the court declared:
[tlhe order of the Texas Water Cormaission is in
the nature of a recommendation concerning a
project proposed for construction by an agency of
the Federal Government and is not conclusive and
does not colmnit the Federal Government to
construct the project. (Emphasis added).
Id. at 797. The Moody court, citing Sun Oil Company v. Railroad
%ission, 311 S.W.2d 235 (Tex. 1958), noted that courts generally
can review only final actions of an agency having exclusive
jurisdiction of the matter concerned. The board under this statute
takes no "final action" determining the legal rights, duties, or
privileges of any party, but only makes a recommendation. The project
here contemplated is one to be constructed, in whole or in part, by
federal funds and falls within the lenitimate commerce Dower of the
federal government. United States v. &and River~Dam A;th%tv. 363
U.S. 229 (1960). No approva11 by the state of Texas is required for
the construction of such projects. See Neches River Conservation
District v. Seeman, 252 F.2d 327 (5th Cir. 1958). cert. denied, 358
U.S.820nderson v. Seeman, 252 F.2d 321 (5th Cir. 1958).
cert. denied 358 U.S. 820 (1958).
The court in Moody, supra, set forth the purpose to be achieved
by article 7472e. V.T.C.S., and characterized the act in the following
way :
The opportunity of the State to comment
officially upon the proposed project is derived
from a provision of the Flood Control Act of 1944
as amended, 33 U.S.C. §701-l(a). This Act is long
and we do not copy such herein, but provision is
made for plans, submission to Congress and that
relations of the Chief of Engineers shall be with
the Governor or an agency designated and for the
written views and recommendations and for
transmittal of such plan to Congress, etc.
p. 723
Honorable Gib Lewis - Page 6 (JM-164)
Anderson v. Seeman. 252 F.2d 321 (Fifth Cir.
1958), cert. denied, 358 U.S. 820. 79 S.Ct. 32, 3
L.Ed.2d 61.
Prior to the enactment of Article 7472e there
was no statutory procedure whereby the views of
the State could be given to Congress on a project
like the one involved herein and Sec. 8, the
emergency clause in enactment of Article 7472e.
recites the purpose of the Legislature.
The several sections of Article 7472e set out
in detail the procedures to be followed by the
Governor and the Water Commission.
The Act requires the Governor to submit reports
of Federal Agencies received by him to the Texas
Water Commission for a public hearing, for study
and recommendations to him as to the feasibility
of the project, and after such hearing that the
Commission shall enter its order either approving
or disapproving the feasibility of the project,
giving its reasons therefor. Upon receipt of such -.
orders the Governor is required to notify the
Federal Agency.
The Act sets out in detail in the several
sections the procedures to be followed in hearing,
determining and order to be entered . . . .
(Emphasis added).
Id. at 796-797. Declaring that the nature and action of the
commission in similar matters has been held to be administrative, the
court stated that no provision for judicial review was prescribed in
the statute as might have been and "the fact that the legislature has
denied judicial review does not invalidate the Act." Id. at 797.
City of Amarillo v. Hancock, 239 S.W.2d 788 (Tex. 1951); Sanchez v. El
Paso Civil Service Commission, 475 S.W.2d 323 (Tex. Civ. App. - El
Paso 1971, writ ref'd n.r.e.). Admittedly at issue in Moody was
whether judicial review was required by due process prior to the
adoption of APTBA. But Moody is compelling as to its characterization
of the action taken by the board when it issues feasibility orders
pursuant to section 12.051 of the Water Code. The public hearing
provided by section 12.051(c) is more analogous to a legislative
committee hearing than it is to a party adjudicative hearing.
Accordingly, we conclude that the board's feasibility order
issued pursuant to section 12.051 of the Water Code does not involve a .-
"contested case" nor does it constitute a "final decision or order."
p.724
, .
Honorable Gib Lewis - Page 7 (JM-164)
Hence, the feasibility order issued pursuant to section 12.051 is not
subject to the procedural requirements of article 6252-13a, V.T.C.S.,
("Administrative Procedure and Texas Register Act").
SUMMARY
A feasibility order issued by the Texas Water
Development Board pursuant to authority conferred
by section 12.051 of the Water Code is not subject
to the procedural requirements of article
6252-13a, V.T.C.S., ("Administrative Procedure and
Texas Register Act").
J /v&i
Very truly yours,
6
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Jim Moellinger
Nancy Sutton
p. 725