COASTAL HABITAT ALLIANCE, Appellant v. PUBLIC UTILITY COMMISSION OF TEXAS; Barry T. Smitherman, Chairman; Kenneth W. Anderson, Jr., Commissioner; Donna L. Nelson, Commissioner; Texas Gulf Wind LLC; PPM Energy, Inc.; and AEP Texas Central Company, Appellees.
No. 03-08-00205-CV.
Court of Appeals of Texas, Austin.
July 8, 2009.
John F. Williams, Patrick J. Pearsall, Marnie A. McCormick, Clark, Thomas & Winters, P.C., Thomas H. Watkins, Elizabeth G. (Heidi) Bloch, Christopher Hughes, Brown, McCarroll, L.L.P., Nathan M. Bigbee, Douglas Fraser, Assistant Attorneys General, Austin, TX, James H. Barkley, Karlene Poll, Macey Reasoner Stokes, Jason Ryan, Baker Botts, L.L.P., Houston, TX, for appellee.
Before Justices PATTERSON, PEMBERTON and WALDROP.
OPINION
G. ALAN WALDROP, Justice.
At issue in this case is the district court‘s subject-matter jurisdiction to review the Public Utility Commission‘s denial of a motion to intervene in a proceeding before the Commission. The Commission denied appellant Coastal Habitat Alliance‘s motion to intervene in the Commission‘s consideration of an electric utility‘s application to amend its certificate of convenience and necessity. The Alliance filed suit in district court in an attempt to appeal or challenge the order denying the request to intervene. The district court dismissed the Alliance‘s lawsuit for lack of subject-matter jurisdiction. We hold that the Administrative Procedure Act does not authorize a non-party such as the Alliance to independently pursue judicial review of a final order or decision of the Public Utility Commission. We also hold dismissal of the Alliance‘s claim for declaratory relief to be proper because, by statute, the denial of the Alliance‘s intervention was a matter committed to the Commission‘s discretion. Although a constitutional due process claim may be asserted by a non-party to an administrative proceeding, the Alliance has failed to allege the deprivation of a vested property right as a result of the denial of its intervention. We affirm the judgment of the district court.
Factual and Procedural Background
On June 25, 2007, appellee AEP Texas Central Company (AEP TCC) filed with the Public Utility Commission of Texas an application to amend its certificate of convenience and necessity (CCN) to construct, own, and operate a 21.6-mile, 345-kilovolt, double-circuit transmission line on Kenedy Ranch in Kenedy County. The transmission line is intended to interconnect two proposed wind generation facilities to be constructed on the ranch. On August 9, 2007, appellant Coastal Habitat Alliance filed a motion to intervene in the Commission‘s review of AEP TCC‘s application. The Alliance is an association of landowners and environmental groups formed for the purpose of protecting their environmental interests in the coastal region on which the transmission line would be located.1 The motion to intervene alleged “adverse effects of this project on coastal wetlands, flora and fauna in the region, and endangered and migratory species.”
On November 27, 2007, the Commission issued a Notice of Approval granting AEP TCC‘s application to amend its CCN. On December 4, 2007, the Alliance filed suit in district court against the Commission, as well as Chairman Barry T. Smitherman and Commissioners Julie C. Parsley and Paul Hudson in their official capacities,2 seeking reversal of the order denying its motion to intervene and seeking to vacate the administrative approval of the underlying CCN based on the claim that the denial of the Alliance‘s request to intervene was improper. In its original petition, the Alliance asserted that the denial of its intervention violated the Texas Utility Code and the Alliance‘s right to due process and due course of law, and sought declaratory relief under the Administrative Procedure Act, mandamus relief, and injunctive relief.3
By agreement among the parties, a hearing on the merits was set for March 5, 2008, in the district court. On February 21, 2008, AEP TCC and the Commission filed pleas to the jurisdiction seeking dismissal of the lawsuit. On March 4, 2008, the Alliance filed a response to the pleas to the jurisdiction, and filed a motion for leave to file an amended petition, by which the Alliance sought to add a claim for relief under the Uniform Declaratory Judgments Act as an additional basis for declaratory relief. Following the March 5 hearing on these pre-trial motions, the district court, on March 6, 2008, denied the Alliance‘s motion to amend its original petition, granted the pleas to the jurisdiction, and dismissed the Alliance‘s lawsuit. Coastal Habitat Alliance appeals.
Analysis
A plea to the jurisdiction challenges the trial court‘s authority to determine the subject matter of a specific cause of action. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Whether a court has subject-matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Texas Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In deciding a plea to the jurisdiction, we are not to
In this lawsuit, Coastal Habitat Alliance seeks judicial review of the Commission‘s interlocutory order denying the Alliance‘s motion to intervene. “It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right.” Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000) (citing Stone v. Texas Liquor Control Bd., 417 S.W.2d 385, 385-86 (Tex. 1967)). The Alliance argues that it has a right to judicial review based on (1) the Administrative Procedure Act, (2) the Uniform Declaratory Judgments Act, and (3) the constitutional right of due process and due course of law.
Administrative Procedure Act
The Alliance has a right to judicial review of an administrative order if a statute provides that right. See id. The Alliance asserts that the Administrative Procedure Act (APA)4 gives the district court jurisdiction over the Alliance‘s lawsuit that amounts to an appeal of the denial of its request to intervene. Section 2001.171 of the APA states as follows: “A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.”
The Public Utility Regulatory Act (PURA)5 specifically authorizes review of decisions by the Commission. Section 15.001 of the PURA provides that “[a]ny party to a proceeding before the commission is entitled to judicial review under the substantial evidence rule.”
Based on the supreme court‘s holding in Mega Child Care—that APA section 2001.171 provides an independent right to judicial review in situations in which the agency‘s enabling statute “neither specifically authorizes nor prohibits judicial review of the decision,” see 145 S.W.3d at 173—this Court has held that an independent right to judicial review under the APA applies only “when the agency‘s enabling act is silent” as to judicial review, see West v. Texas Comm‘n on Envtl. Quality, 260 S.W.3d 256, 260-61 (Tex. App.—Austin 2008, pet. denied). The PURA is not silent on this matter. It specifically authorizes judicial review only for parties. See
The [plaintiff] did not participate in the administrative hearing in any capacity before the Commission issued its decision and did not obtain permission to intervene in the administrative proceeding; the [plaintiff], therefore, was not a party to the proceeding and does not have a statutory right to judicial review of the Commission‘s decision.
City of Port Arthur v. Southwestern Bell Tel. Co., 13 S.W.3d 841, 844 (Tex. App.—Austin 2000, no pet.) (citing
PURA section 15.001 authorizes only a party to obtain judicial review of a proceeding before the Commission. See
Coastal Habitat Alliance next asserts that the Uniform Declaratory Judgments Act (UDJA)9 provides a statutory right to judicial review of the administrative order denying its motion to intervene. The UDJA provides that a person whose rights, status, or other legal relations are affected by a statute may have determined any question of construction or validity arising under the statute, and may obtain a declaration of rights, status, or other legal relations thereunder.
The Alliance‘s request for declaratory relief in its original petition did not contain a reference to the UDJA.10 The Alliance sought to amend its pleadings to reference the UDJA, but the district court denied the motion. Appellees argue that the Alliance‘s motion for leave to amend its pleadings, which was filed the day before the scheduled hearing on the merits, was properly denied because the amendment “operated as a surprise” to appellees, see
Private parties may seek declaratory relief against state officials who allegedly act without legal or statutory authority. City of El Paso v. Heinrich, 284 S.W.3d 366, 369-70 (Tex. 2009); Texas Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A justiciable controversy regarding whether a state agency or official has acted beyond its statutory authority provides a jurisdictional basis for a UDJA action seeking statutory construction of that authority. Texas Dep‘t of Ins. v. Reconveyance Servs., Inc., 240 S.W.3d 418, 428 (Tex. App.—Austin 2007, pet. filed). However, a suit that seeks to control a state official‘s exercise of discretion within his legal authority is a suit to control state action, which is barred by sovereign immunity absent legislative consent. McLane Co. v. Strayhorn, 148 S.W.3d 644, 649 (Tex. App.—Austin 2004, pet. denied); see Heinrich, 284 S.W.3d at 371 (suit alleging violation of statute “leaving no room for discretion” is not barred).
Therefore, if the Commission‘s denial of the Alliance‘s motion to intervene was a valid exercise of discretion, the Alliance‘s UDJA claim is barred by sovereign immunity. In Ennis Transportation Co., this Court recognized that generally “the allowance or denial of petitions for intervention in administrative proceedings rests in the discretion of the agency.” 695 S.W.2d 706, 710 (Tex. App.—Austin 1985, writ ref‘d n.r.e.). The plaintiffs in Ennis Transportation were contract carriers who had appealed an agency‘s denial of their participation as parties to an administrative proceeding, and the trial court had concluded that the carriers were “interested parties” who were entitled to so participate. See id. at 708-09. This Court reversed the district court‘s judgment, holding that while the agency could allow the carriers to intervene, it was not compelled to do so. See id. at 711-12.11
Section 37.054(b) of the PURA provides that a “person or electric cooperative interested in the application may intervene at the hearing.”
However, the Alliance‘s statutory construction conflicts with this Court‘s analysis in Ennis Transportation. In that case, the governing statute—the Motor Carrier Act—provided that interested parties “may appear” in the proceeding. See Act
Under the amended petition filed by the Alliance, the Alliance sought a declaration under the UDJA that the Notice of Approval is void and that the Commission must allow the Alliance‘s participation as a party in the review of AEP TCC‘s application. Given that the denial of the Alliance‘s intervention was a discretionary act, this UDJA claim is an “attempt to exert control over the state,” which is barred by sovereign immunity. See Heinrich, 284 S.W.3d at 372 (ultra vires exception to sovereign immunity does not include complaint over government officer‘s exercise of discretion); North Alamo Water Supply Corp. v. Texas Dep‘t of Health, 839 S.W.2d 455, 459 (Tex. App.—Austin 1992, writ denied) (“The fact that the [agency] might decide ‘wrongly’ in the eyes of an opposing party does not vitiate the agency‘s jurisdiction to make an initial decision.“). Therefore, the UDJA does not provide the Alliance with a right to judicial review of the Commission‘s administrative order. We affirm the dismissal of the Alliance‘s claim for declaratory relief for lack of jurisdiction.
Due Process
Under Texas law, a party may have a right to judicial review of an administrative order if the order adversely affects a vested property right or otherwise violates a constitutional right. Continental Cas. Ins. Co., 19 S.W.3d at 397; see Public Util. Comm‘n v. Pedernales Elec. Coop., Inc., 678 S.W.2d 214, 222 n. 6 (Tex. App.—Austin 1984, writ ref‘d n.r.e.) (noting that even if legislature denies judicial review of agency action, judicial review is available for deprivation of property without due process). Coastal Habitat Alliance contends that the Commission‘s denial of the Alliance‘s intervention deprived it of its constitutional right to due process, see
Before considering what process is due, however, our first inquiry in a procedural due process claim is whether the plaintiff has been deprived of a property or liberty interest deserving protection under the federal and state constitutions. If a plaintiff fails to allege the deprivation of such an interest, the plaintiff has failed to allege a due process claim. See Spring Branch Indep. Sch. Dist. v. Stamos, 695 S.W.2d 556, 560-61 (Tex. 1985); City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 248-49 (Tex. App.—Fort Worth 2007, pet. denied).
The Alliance argues that, as an interested entity in the administrative proceedings, it had a vested interest in seeking a hearing and in participating as a party to protect its interests. However, we have already determined that the denial of the Alliance‘s motion to intervene and, specifically, the determination that the Alliance was not an “interested” person—was a matter of the Commission‘s discretion. See Ennis Transp. Co., 695 S.W.2d at 710. Therefore, a person‘s desire to intervene in a proceeding before the Commission is not a vested property interest entitled to protection under the federal and state constitutions. See Weatherford v. City of San Marcos, 157 S.W.3d 473, 483-84 (Tex. App.—Austin 2004, pet. denied) (finding no vested property right in rezoning application, which is legislative act subject to discretion of city). The Alliance must demonstrate a vested property interest that will be deprived by the denial of its intervention in the proceeding other than its interest or desire to intervene. See Pickell v. Brooks, 846 S.W.2d 421, 426 (Tex. App.—Austin 1992, writ denied) (“[P]rocedural due-process analysis protects only what actually belongs to the individual, rather than recognizing that unfairness exists in the very act of disposing of an individual‘s situation without allowing the individual to participate in some meaningful way.“).
The Alliance contends that it possesses property rights that will be harmed by the proposed transmission line‘s impact on wildlife. According to the Alliance, the transmission line and its associated wind farms would disrupt a “unique and vital migratory bird corridor” and could destroy a “known endangered species habitat,” and these consequences would, in turn, impair the Alliance‘s members’ interests in wild bird conservation and birdwatching. One member of the Alliance, King Ranch, is an adjacent property owner to Kenedy Ranch, and its president alleges the proposed transmission line‘s threat to wildlife habitat will impair the profitability of King Ranch‘s birdwatching, wildlife tourism, and hunting expeditions on its property.14
The Alliance cites no authority for its proposition that a vested property right may exist in wildlife, or in the viewing, enjoyment, or hunting thereof. On the contrary, under state law, no vested property interest exists in wild animals. Hollywood Park Humane Soc‘y v. Town of Hollywood Park, 261 S.W.3d 135, 140 (Tex. App.—San Antonio 2008, no pet.). Wild birds, as wild animals, belong to the State, and no individual property rights exist in them as long as they remain wild, unconfined, and undomesticated. Id. The Alliance does not allege that any of the birds that would be harmed by the transmission line have ever ceased being wild, unconfined, or undomesticated.15 The Alliance cites to federal case law holding that environmental plaintiffs adequately allege injury in fact for purposes of standing when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000); American Bird Conservancy, Inc. v. Federal Commc‘ns Council, 516 F.3d 1027, 1031 (D.C. Cir. 2008). Whether a plaintiff has standing in federal courts to assert a cause of action is not indicative of the deprivation of a vested property right. See Cantrell v. City of Long Beach, 241 F.3d 674, 681 (9th Cir. 2001) (“That the litigant‘s interest [for purposes of standing] must be greater than that of the public at large does not imply that the interest must be a substantive right sounding in property or contract.“). This Court has held that “[a]n injury need not affect ‘vested’ property rights to confer standing” and, thus, “the harm [for purposes of standing] may be economic, recreational, or environmental.” Texas Rivers Prot. Ass‘n v. Texas Natural Res. Conservation Comm‘n, 910 S.W.2d 147, 151-52 (Tex. App.—Austin 1995, writ denied). The Alliance‘s allegation that its alleged harm would constitute an injury in fact for purposes of standing, therefore, does not suffice as an allegation of a deprivation of a constitutionally protected interest.
Consequently, the interests alleged by the Alliance do not constitute a vested property right sufficient to support a due process claim. Absent any allegation of deprivation of a vested property right, the Alliance has not alleged a right to judicial review based on an order that adversely affects a vested property right or otherwise violates a constitutional right. See Continental Cas. Ins. Co., 19 S.W.3d at 397. The district court properly dismissed the Alliance‘s due process claim for lack of jurisdiction.
Conclusion
We hold that (1) the APA does not provide Coastal Habitat Alliance with a right to judicial review of the denial of its intervention before the Public Utility Commission, (2) sovereign immunity would bar a UDJA claim based on such denial, and (3) the Alliance failed to allege the deprivation of any vested property interest as a result of such denial. Therefore, we af-
Concurring and Dissenting Opinion by Justice PATTERSON.
JAN P. PATTERSON, Justice, concurring and dissenting.
The question before us is whether the district court properly granted the pleas to the jurisdiction filed by the Public Utility Commission and its Commissioners and the AEP Texas Central Company.1 Contrary to the precedents of the Texas Supreme Court and this Court, the majority affirms the district court‘s order and, in doing so, perpetuates a “failure of justice”2 that erodes confidence in the agency process and could easily have been resolved by the Commission itself in carrying out its core functions.3 Because the allegations in the pleadings filed by the Coastal Habitat Alliance were sufficient to invoke the district court‘s jurisdiction to review the final order of the Commission under the Administrative Procedure Act, I would reverse the district court‘s order in part and remand for further proceedings.
The majority posits three basic conclusions:
- The Administrative Procedure Act does not authorize a non-party such as the Alliance to independently pursue judicial review of a final order or decision of the Public Utility Commission;
- Dismissal of the Alliance‘s claim for declaratory relief [was] proper because, by statute, the denial of the Alliance‘s intervention was a matter committed to the Commission‘s discretion and subject to review by mandamus; [and]
- Although a constitutional due process claim may be asserted by a non-party to an administrative proceeding, the Alliance has failed to allege the deprivation of a vested property right as a result of the denial of its intervention.
For the reasons that follow, I would conclude that section 2001.171 of the APA provides an independent right of judicial review of the Commission‘s final order. Based on that conclusion, I would also conclude that any remedy available under the UDJA would be redundant of the remedies available under the APA and, therefore, I agree with the majority‘s conclusion that the district court properly dismissed the Alliance‘s claims to the extent they were brought under the UDJA.4 I also
agree with the majority‘s conclusion that the Alliance has failed to state a constitutional due process claim. However, I disagree with the majority‘s conclusion that the Commission‘s order denying the Alliance‘s motion to intervene in the underlying administrative proceedings is subject to review only by mandamus.
Judicial Review Under the APA
Relying on the supreme court‘s decision in Texas Department of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex. 2004), the majority erroneously concludes that the Alliance cannot obtain judicial review under section 2001.171 of the APA because section 15.001 of the Public Utility Regulatory Act expressly provides that “[a]ny party to a proceeding before the [C]ommission is entitled to judicial review under the substantial evidence rule.” Op. at 281 (citing
Section 2001.171 of the APA provides:
A person who has exhausted all administrative remedies available within a state agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.
Section 15.001 of the PURA expressly provides judicial review only for “any party to a proceeding before the [C]ommission.”
This conclusion is consistent with this Court‘s decision in West v. Texas Comm‘n on Envtl. Quality, 260 S.W.3d 256, 260-62 (Tex. App.—Austin 2008, pet. denied). Although this Court in West concluded that the APA did not provide an independent right of judicial review, it did so because the water code expressly provided that a person was entitled to judicial review of the agency‘s decision. See id. at 260 (citing
Contrary to this Court‘s reasoning in West, the majority concludes that “PURA is not silent” because section 15.001 “specifically authorizes judicial review only for parties” and, therefore, a non-party like the Alliance is not entitled to judicial review. See op. at 282. But the majority injects into section 15.001 a prohibition against judicial review by a non-party where none exists.
The plain language of PURA section 15.001 allows a party to the proceeding to seek judicial review of the Commission‘s decision. See
Clinging to outdated precedent, the majority asserts that its holding is consistent with this Court‘s prior holding in City of Port Arthur v. Southwestern Bell Telephone Company, 13 S.W.3d 841, 844 (Tex. App.—Austin 2000, no pet.), “that a non-party has no statutory right to judicial review of a decision by the Public Utility Commission.” Op. at 282. But the majority‘s reliance on City of Port Arthur is misplaced because that case was decided four years prior to the supreme court‘s decision in Mega Child Care and, therefore, this Court did not consider whether
The question then is whether the Alliance has satisfied the requirements for judicial review under section 2001.171. By its plain language, section 2001.171 allows for judicial review by (1) a person (2) who has exhausted all administrative remedies available within a state agency (3) who is aggrieved by a final decision in a contested case. The Commission does not dispute that the Alliance is a person within the meaning of the statute or that the Alliance was aggrieved by a final decision by the Commission in a contested case. The Commission challenges only whether the Alliance has exhausted its administrative remedies.6
The Commission argues that, even if the APA provides an independent right of judicial review, the Alliance failed to exhaust its administrative remedies because the Alliance failed to comply with the APA prerequisites regarding motions for rehearing. See
Placing form over substance, the Commission‘s argument ignores two significant factors applicable here: (1) neither the APA nor the Commission‘s procedural rules require, much less contemplate, that a non-party must file a motion for rehearing; and (2) the Alliance had already filed a motion for rehearing challenging the Commission‘s denial of its motion to intervene. Because I conclude that, under the circumstances of this case, the APA does not require a non-party like the Alliance to file a redundant motion for rehearing as a prerequisite for judicial review, I would conclude that the Alliance has satisfied the exhaustion requirement.
Section 2001.145 of the APA states that “a timely motion for rehearing is a prerequisite to an appeal in a contested case.” See
Because the Commission denied the Alliance‘s motion to intervene and overruled the Alliance‘s appeal and motion for reconsideration of that decision, the Alliance was not a party within the meaning of section 2001.146(a) of the APA or the Commission‘s rules. See
The policy behind requiring parties to exhaust their available administrative remedies is to encourage parties to resolve their dispute without resorting to litigation when an administrative procedure has been provided for that purpose. Vela v. Waco Indep. Sch. Dist., 69 S.W.3d 695, 702 (Tex. App.—Waco 2002, pet. withdrawn by agr.); Gregg County v. Farrar, 933 S.W.2d 769, 773 (Tex. App.—Austin 1996, writ denied) (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991)). This Court has recognized:
An eminently practical reason for requiring exhaustion of remedies is that the complaining party may be successful in vindicating his rights in the administrative process and never have to resort to court. Notions of administrative autonomy require further that the agency be given first opportunity to discover and correct its own errors.
Texas Air Control Bd. v. Travis County, 502 S.W.2d 213, 215-16 (Tex. App.—Austin 1973, no writ); see also McKart v. United States, 395 U.S. 185, 194 (1969).
With regard to the requirement that one must file a motion for rehearing before seeking judicial review, the purpose of that requirement is to notify an agency of potential errors in its order to allow the agency an opportunity to correct such errors before resorting to litigation. See Suburban Util. Corp. v. Public Util. Comm‘n, 652 S.W.2d 358, 364-65 (Tex. 1983); Coalition for Long Point Pres. v. Texas Comm‘n on Envtl. Quality, 106 S.W.3d 363, 373 (Tex. App.—Austin 2003, pet. denied). Thus, even if the Alliance was required to file a motion for rehearing to exhaust its administrative remedies, I submit that the Alliance‘s appeal to the Commission from the director‘s order denying intervention and the Alliance‘s motion for reconsideration of the Commission‘s order denying that appeal satisfied the Alliance‘s obligation to file a motion for rehearing. More importantly, the Alliance satisfied the underlying purpose of the exhaustion doctrine by providing the Commission with an opportunity to correct any alleged error before the Alliance resorted to litigation. See Suburban Util. Corp., 652 S.W.2d at 364-65. In the absence of a statutory mandate and when it serves no valid purpose, a court should not create unnecessary hoops through which a litigant must leap.
This is consistent with the concept and structure of judicial review under section 2001.171 of the APA. Unlike the provisions relating to motions for rehearing, section 2001.171 speaks in terms of “persons” not “parties.” See
The Commission, however, faults the Alliance and argues on appeal that, in order to exhaust its administrative remedies, the Alliance was required to file yet another motion for rehearing regarding the denial of its intervention once the Commission issued the notice of approval of the CCN application, while acknowledging that any motion for rehearing filed by the Alliance would have been a nullity under the Commission‘s rules. Stated differently, “[l]ike the chess player who tries to win by sweeping the opponent‘s pieces off the ta-
Jurisdiction under the UDJA
Because I conclude that the APA provides an independent right of judicial review, I would also conclude that an action for declaratory relief under the UDJA would be redundant and, therefore, would not lie. See Beacon Nat‘l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.) (a declaratory judgment action will not lie to provide redundant remedies); Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex. App.—Austin 1998, pet. denied) (when statute provides avenue for attacking agency order, declaratory judgment action will not lie to provide redundant remedies); Ben Robinson Co. v. Texas Workers’ Comp. Comm‘n, 934 S.W.2d 149, 153 (Tex. App.—Austin 1996, writ denied) (same). Accordingly, I agree with the majority‘s conclusion that the district court properly dismissed the Alliance‘s claims to the extent they were brought under the UDJA, but for different reasons than those expressed by the majority.9
Due Process and Deprivation of a Vested Right
I also agree with the majority‘s conclusion that the Alliance has not alleged a deprivation of a vested property right or otherwise asserted a violation of its constitutional rights and, therefore, is not entitled to judicial review on the ground that the Commission‘s order violates Due Process. See, e.g., Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000). On this point, the Alliance simply confuses the concepts of an injury-in-fact necessary to confer standing, which the Alliance asserts through its allegations that its members utilize the affected area and will be harmed by the Commission‘s approval of TCC‘s application for a CCN, and deprivation of a vested property right, which they do not assert. As the majority recognizes, the alleged harm necessary to confer standing may be insufficient to demonstrate the deprivation of a vested property right entitled to constitutional protection on the grounds of Due Process.10 See op. at 287.
Review by Writ of Mandamus
In a footnote at page 7 of its slip opinion, the majority suggests that the Commission‘s denial of intervention was subject to review only by mandamus. Op. at 282 n. 6 (citing State v. Thomas, 766 S.W.2d 217, 218-20 (Tex. 1989) and noting that the Alliance does not appeal the dismissal of its request for mandamus relief). This suggestion is contrary to the majority‘s conclusion that the Commission‘s denial of the Alliance‘s intervention was a discretionary act.
If the majority is correct in its claim that the Commission‘s denial of the Alliance‘s intervention was a discretionary act, then review by mandamus would not lie because it is well established in Texas law that courts will not issue writs of mandamus to control or revise the exercise of discretion by trial courts in the performance of purely judicial as distinguished from ministerial acts. See O‘Meara v. Moore, 142 Tex. 350, 178 S.W.2d 510, 514 (1944) (orig. proceeding) (trial court cannot be compelled by mandamus to make particular findings); Matlock v. Smith, 96 Tex. 211, 71 S.W. 956, 956-57 (1903) (orig.
The basic principle that mandamus will not lie to control the exercise of discretion explains the supreme court‘s grant of mandamus relief in State v. Thomas, 766 S.W.2d 217, 218-20 (Tex. 1989). In that case, the supreme court determined that the constitution required that the Texas Attorney General be allowed to intervene in administrative proceedings before the Commission to establish utility rates. See id. Because it was a ministerial act to allow the attorney general to perform his constitutional duty—and not an exercise of judicial discretion—the supreme court‘s grant of mandamus relief was appropriate. Id.
In this case, however, the majority contends that allowing the Alliance to intervene in the underlying administrative proceedings was an act subject to the Commission‘s discretion. If the majority is correct in this contention, then the majority is incorrect to suggest that the Commission‘s action denying intervention is subject to review by mandamus. Compare Thomas, 766 S.W.2d at 218-20, with Matlock, 71 S.W. at 957.
Additionally, the majority‘s suggestion that the Commission‘s order denying intervention is subject to review by mandamus would defeat the requirement that one must exhaust administrative remedies before seeking review of agency decisions. Because many administrative decisions are subject to judicial review under either an agency‘s enabling act or the APA, it is unnecessary to provide for such review by way of mandamus. The supreme court has consistently recognized that, where there is an adequate remedy by way of appeal, the extraordinary remedy of mandamus is inappropriate. See In re McAllen Med. Ctr., 275 S.W.3d 458, 462, 464-69 (Tex. 2008); Walker v. Packer, 827 S.W.2d 833, 841-42 (Tex. 1992); Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 652 (1958).
To allow mandamus review in the context of interim agency orders would also be contrary to the supreme court‘s holding that an agency‘s interim orders are reviewable, if at all, only upon appeal from final orders. See City of Corpus Christi, 572 S.W.2d at 299-300. Although exceptions to the exhaustion doctrine exist, such exceptions do not compel the availability of mandamus relief. For these reasons, I disagree with the majority‘s conclusion that the Commission‘s order denying the Alliance‘s intervention was subject to review only by mandamus.
CONCLUSION
Because I conclude that the APA provides an independent right of judicial review under the facts of this case, I respectfully dissent from the majority‘s conclusion that it does not. Albeit for different reasons, I agree with the majority‘s conclusions that the district court lacked jurisdiction to review the Alliance‘s claims under the UDJA and properly dismissed those claims. I also agree with the majority‘s conclusions that the Alliance has not al-