*1 AQUIFER AUTHORITY EDWARDS al., Petitioners,
et LIME, LTD., Respondent.
CHEMICAL
No. 06-0911. Court of Texas.
Supreme April
Argued June
Decided Sept. Denied
Rehearing *2 Moltz,
William John Janessa Coffman Glenn, O’Toole, L.L.P., Moltz Morton L.L.P., Phillips, Thomas R. Baker Botts Austin, TX, Gilbreath, Hawkins, Robert B. Thackston, LLP, Parnell & Paul Wat- C. ler, Walker, L.L.P., Jackson Marie Alisa Frame, L.L.P., Dallas, TX, Baker Botts Respondent. Warr, Amy Alexander Dubose & Town- send, LLP, Monson, Kristofer S. So- Asst. General, Ford, licitor Julie A. R. James Jr., LLP, & George George Brothers Aus- tin, TX, for Amicus Curiae.
Justice HECHT delivered the opinion Court, which Chief Justice JEFFERSON, O’NEILL, Justice Justice WAINWRIGHT, BRISTER, Justice MEDINA, GREEN, Justice Justice Justice JOHNSON and Justice WILLETT joined.
Whether, matter, as a general an appellate court’s decision takes effect order, opinion, moment the court issues its judgment, or later rehearing time rehearing denied or the expires, or still later when the clerk issues mandate, difficult Tex question is a under procedure, as law and reflected arguments competing in Justice BRisteR’s separate and opinions, Justice Willett’s and one we need not answer We today. if appellate all agree express ly time for states the its decision to take effect, controls. rule that statement That applies here. County Medina Under- District,
ground Conservation we Water Hatchell, Mike A. Locke & prescribed Lord Bissell deadline “six months Liddell, LLP, Miller, Darcy Aquifer] Authority Andrew S. after the be- [Edwards Frownfelter, Smith, P.C., Kemp Alan happened, Aus- comes effective”.1 As it tin, Slavin, Osborn, TX, began Ken Mark Deb- Authority operations day N. LLP, Trejo, Smith, Kemp orah Clarke El effec- issued our thus became Paso, TX, for Petitioner. tive. The deadline was set at six months 1. 925 S.W.2d un- recharging [aquifer’s] tecting and Authori- hold that the We that date. ... formations water-bearing derground Barshop, and there- correctly applied
ty pollu- prevention of waste for the the court fore we reverse powers Although the District’s to the tion”.4 *3 remand the case appeals.2 We of years, it still over the were broadened proceedings. for further trial court authority Legis- regulatory lacked the I In was essential. to believe lature came 1993, passed the Edwards Legislature underground is an Aquifer The Edwards (EAAA),5 re- which Authority Act Aquifer rock, water-bearing 300- layer porous, Aqui- with the Edwards the District placed thick, forty miles wide five to feet and 700 Authority broad giving the Authority, fer surface, in an arced that stretches at control of the the effective powers “for Brackettville, 120 miles west of from curve aquatic terrestrial and protect resource to Antonio, primary It is the to Austin. San life, municipal sup- water and domestic central Texas water for south source of industries, existing operation plies, residents, indus- vital to the therefore and development economic and the region, the State’s ecology of the try, and expanded the The EAAA also state.”6 welfare. economy, public and the territory. covered early 1950s in the droughts Record wa- withdrawals of prohibits The EAAA to create the Legislature prompted the permit is- without aquifer ter from District Underground Water Edwards total Authority,7 limits the by the conserving, pro- sued purpose 19593 “for R.S., 626, 1.41(a), 2006) Leg., § 1993 Tex. Gen. (op. ch. (Tex.App.-Austin 683 2. 212 S.W.3d 2350, Laws reh’g). on Analysis, Org., Tex. Bill 3. See House Research 30, 1993, R.S., May Leg., ch. 73d 5. Act of. (1993) ("From 1477, Leg., R.S. S.B. 73rd 2350, 626, amended Gen. Laws as 1993 Tex. 1950-1956, experienced a record Texas R.S., 29, 1995, May Leg., ch. by 74th Act of [sic], Springs New draught causing Comal 2505; 261, May Act of Tex. Gen. Laws 1995 go dry and re- for five months Braunfels to R.S., 163, 6, 1999, Leg., ch. 1999 Tex. 76th Springs.... ducing of San Marcos the flow 634; 27, 2001, May Act of 77th Gen. Laws Underground Water response, Edwards 2.60-.62, 6.01-.05, R.S., 966, Leg., §§ ch. (EUWD) legislatively created in District 1991, 2021-2022, 2075- Tex. Gen. Laws 2001 conserve, recharge protect and 1959 to 2001, R.S., 2076; 25, May Leg., 77th Act of known as the groundwater in the five counties 2696; 1192, Laws Act of ch. 2001 Tex. Gen. Aquifer region.”). Edwards R.S., 1112, 1, 2003, Leg., ch. 78th June 3193; 3188, 6.01(4), § Tex. Gen. Laws 2003 R.S., 99, 9, 1959, Leg., April ch. 4. Act of 56th R.S., 510, 23, 2007, Leg., May ch. Act of 80th 173, 173, 1,§ Laws as amend- 1959 Tex. Gen. 900; 28, May Act of Tex. Gen. Laws 2007 R.S., 12, 1979, Leg., ch. by Apr. 66th ed Act of 2.01-2.12, R.S., 1351, 2007, §§ Leg., ch. 80th 110; 23, 69, May Act Laws Gen. 4627-34; 4612, Act of 2007 Tex. Gen Laws 306, 1979, Laws Leg., ch. 1979 Tex. Gen. 66th 1430, 2007, R.S., 28, Leg. ch. May 80th R.S., 706; 19, 1983, Leg., May 68th ch. Act of 5848, 12.01-12.12, Tex. Gen. Laws §§ 5422; 1010, May Act of Tex. Gen. Laws 2009, 5901-09; 21, May Leg., 81st Act of 332, R.S., Leg., ch. 1987 Tex. 70th ch.-, Laws-(Tex. R.S., Gen. 2009 Tex. 29, 1987, 1746; May 70th Act of Gen. Laws 2009). Sept. effective H.B. to become R.S., Leg., Tex. Gen. Laws ch. R.S., 1747; 26, 1987, Leg., May 70th Act of EAAA 1.01. 2411; Act of Tex. Gen. Laws ch. R.S., 28, 1987, Leg., May ch. 70th 1.15(b) 29, 1989, by 2457; ("Except provided as May 7. EAAA Tex. Gen. Laws Act of R.S., Authorization'] ['Interim 1.17 Leg., Tex. Gen. Laws Sections ch. 71st 25,000 gallons 1988; 30, 1993, producing less than May [wells 73rd I.33 repealed Act of per year,8 the limit on total of water calendar withdrawals permitted withdrawals “existing aquifer, existing from the an user who files preference gives required”, pays appli- who “as persons declaration user[s]” —defined (set $25), under- cation fee beneficially used and “establishes “withdr[ew] convincing or be- of un- aquifer water from the evidence beneficial use ground water exceptions, derground aquifer”13 1993.”9 With few June fore permit from the entitled to “a of an may not be withdrawn withdrawal water equal amount of water maxi- through wells drilled after June to the user’s aquifer file with mum beneficial use of water without waste permit applicant A must 1993.10 prescribed during any year form11 a one calendar of the histor- Authority on *4 period.”14 existing appli- under- ical After users’ of historical use of “declaration processed, Authority have been aquifer water withdrawn from the cations ground 1, permits cap period may up from June issue additional to the historical during 31,1993.”12 Au- 1972, May Subject to on total annual withdrawals.15 The through 1.14(e) ("The may § authority this EAAA not per day use] for domestic or livestock of article, may aquifer through from person withdraw water allow withdrawals a not 1, 1993, begin aquifer except of a drilled after June addi- or construction wells from (d) provided by designed works for the with- tional water as Subsection well or other basis.”), interruptible an aquifer water from the without ob- and then on amend- drawal of 28, R.S., 2007, authority.”); by May Leg., taining permit from EAAA ed Act of 80th ch. a 4612, 1351, 2.02, ("A 1.35(a) person may § water 2007 § not withdraw Tex. Gen. Laws 1.14(e) except by (amending § a EAAA aquifer authorized 4627 to state: from the as authority may by authority by arti- permit or this "The not allow withdrawals issued cle.”). through aquifer from the wells drilled after test, 1, 1993, except replacement, or June Initially, only capped EAAA withdraw- exempt or to the the authori- wells extent that that, 1.14(b) (stating § with cer- EAAA als. regu- ty approves an amendment to an initial ending De- exceptions, period "for the tain point permit change authorize a in the lar to 31, 2007, permitted of cember amount by permit.”), withdrawal under that of aquifer may exceed from the not withdrawals 2007, R.S., 28, May Leg., ch. Act of 80th 450,000 calendar acre-feet water for each 5848, 1430, 12.02, § 2007 Tex. Gen. Laws 28, 2007, by repealed May Act 80th year”), (same). 1351, R.S., 2.09, § Leg., Tex. Gen. ch. 28, 2007, 4612, 4634, May and Act of Laws 1.16(b). § 11. EAAA R.S., 12.09, 1430, Leg., § ch. 2007 Tex. 80th 5848, 5908. EAAAnow sets Gen. Laws The 1.16(a). § 12. EAAA maximum and withdraw- both the minimum May per year. Act of permitted calendar als 28, 2007, 1.16(d). § 13. EAAA 1351, 2.02, R.S., Leg., § 80th ch. 4612, (amending Tex. Gen. Laws 1.16(e). § EAAA that, 1.14(c) § to state with certain EAAA January period beginning exceptions, "for “(a) § EAAA 1.18 states: To the extent 2008, permitted withdrawals the amount of permitting after the water is available may aquifer exceed or be less from the not users, existing the au- permits to issuance of 572,000 acre-feet for each cal- than of water thority may regular permits, issue additional regular year, which is of all endar the sum per- subject to limits on the total amount of application or for permits issued which under Section mitted withdrawals determined pending and issuance action was filed was article, (b) may authority not this The 1.14 of 1, 2005”); authority January Act of application re- or take action on an consider R.S., May Leg., 80th ch. proposed existing of which lating well 12.02, Gen. Laws use there no evidence actual beneficial (same). a final determina- before June until 1.03(10). regular per- been made all initial tion has 9. EAAA 28, 1995,21 board of directors is thority’s required August August but on “adopt necessary carry rules out the group of landowners and others sued for a ..., authority’s powers and duties includ- declaration that the EAAA facially was ing governing procedures rules unconstitutional. The district court issued authority.” board and temporary restraining order the same day prohibiting Authority begin-
The EAAA May was enacted ning 27, 1995, operations. On November opera- was to commence the district court rendered judgment de- 1,1993, tions September general effec- claring the EAAA unconstitutional and statute, tive date of the regu- but the new permanently enjoining implementation of latory phased scheme was to be in over six provisions. its appeal, But on direct this Existing months.17 users had until March in Court County Medina 1, 1994, Un- permit to file applications,18 derground Water Conservation District which point permit requirement would held that the EAAA not unconstitu- take effect. After March a filer could tional on face its and therefore generally reversed continue to withdraw water the district judgment, court’s pending approval of dissolved the application.19 *5 injunction, and remanded the to case de- implementation But of the EAAA was termine whether attorney fees should be delayed. .1, September 1993, Prior to the awarded.22 We issued our opinion and United States Department of Justice re- 28, 1996, judgment on June denied rehear- fused preclearance administrative for the 16, 1996, ing on August and issued our Authority new under section 5 of the Vot- 10,1997. February mandate on ing Rights Act May of 1965.20 On 1995, the Legislature The began operations amended the EAAA day the issued, to meet the Department’s objections, our opinion and taking over all the as- the Department granted sets, offices, preclearance. personnel, papers and The amended District,23 statute was to be effective which had continued in exis- applications
mit submitted on or before the appointed sisted of nine directors. EAAA application initial date of March § 1994.” 1.09. 1.11(a). § 16. EAAA 29, 1995, R.S., May 21. Act of Leg., 74th ch. 2505; 1995 Tex. Gen. Laws see also 30, 1993, R.S., May 17. Act Leg., 73d ch. Ill, ("No § art. passed by Const, law 626, 4.02, § 1993 Tex. Gen. Laws Legislature, except general appropriation (“This 1, 1993, September Act takes effect act, go shall take effect or into force until except Section 1.35 of Article 1 takes effect ninety days adjournment after the of the ses- 1, 1994.”). March enacted, sion at which it Legis- was unless the shall, by lature a vote of two-thirds of all the 1.16(b) ("An 18. § EAAA existing user’s decla- House, members elected to each otherwise ration of historical use must be filed on or ”). direct.... 1, 1994, before March prescribed on a form by the applicant board. An permit for a must 22. 925 S.W.2d 637-638 timely pay application all required by fees board.”). "(b) § 23. part; EAAA 1.41 states in All files and Underground records of the Edwards § EAAA 1.17. control, pertaining Water manage- District to 1973c(a). ment, See 42 U.S.C. The operation District’s and of the district are trans- governing board consisted of Underground fifteen elected ferred from the Edwards Water 9, 1959, directors. R.S., April Leg., Act of 56th authority District to the on the effective date article, (c) ch. 1959 Tex. Gen. personal Laws of this prop- All real and Authority’s leases, contracts, staff, governing The erty, rights, board con- and obli- temporary Appeals A board of directors Court of for the Fifth tence. Circuit stayed injunction Legislature governed and later appointed reversed ground on the the federal court a November election.24 Authority pending should have abstained allow the Author- widely re- Authority’s The activities were ity, which “in process of taking in the media because of severe ported formulating comments and rules for per- in south cen- drought existing conditions measures”, emergency mits and time to Texas,25 competing tral diverse interests function.27 filed permits,26 lawsuit in June 1996 in the Sierra Club United The EAAA temporary directed the States District Court for the Western Dis- “adopt board to rules governing the au- Texas, seeking judicial trict of federal thority” “as soon as practicable.”28 On Aquifer management Edwards 31, 1996, August the Authority pro- issued protect endangered species. August On posed govern rules to process court, the federal convinced that permit application, including a declara- facing emergency, pre- it was issued a tion of historical use29 The Authority set liminary injunction imposing plan to Saturday, December 1996—six months manage aquifer. United States the date of our opinion—as Underground gations throughout of the Edwards Water resource in Central Texas authority ever, are to the on the District transferred state. Now more than the water in the article, (d) September effective date of this On Aquifer managed Edwards must be 1, 1993, unobligated unexpended all Needham, advantage everyone."); Jerry Underground of the Edwards funds Water Crisis, The Water Express-News, San Antonio *6 authority." District shall be transferred to the 30, 1996, ("The Supreme June at Al Texas Friday regional authority Court's OK for a to 1.092(a) ("Until 24. EAAA a board is elected go managing Aquifer to work the Edwards office, by provided section and takes as this region wallowing drought- still leaves the in governed by authority temporary the woes, provides induced water but a solid (1) Barshop; board that consists of: Mr. Phil problem solving, framework for said officials Beldon; (2) (3) Ralph Zendejas; Mr. Mr. Mike Saturday."); Supremes Reg- Texas: State Back Gonzales; (4) (5) Mr. Ms. Rosa Maria John Aquifer, Greenwire, July ulation Edwards Sanders; Mendelsohn; (6) (7) Sylvia Ms. Ruiz ("A drought unregulated recent and Bernal; Martin; (8) (9) Mr. Joe Mr. Oliver R. pumping substantially depleted aqui- have the Gilliam; Gilleland; (10) Mr. A.O. Mr. Bruce fer.”). Munoz; (11) (12) Rogelio Doug Mr. Mr. Mil- ler; DiFonzo; (13) (14) Ms. Paula Mr. Mack Martinez; Needham, ("Diverse (15) (16) supra Houghson; note 25 inter- Ms. Jane one temporary appointed by aquifer farmers, director the South ests the across San Antonio — cities, Advisory Central Texas Water aqui- Committee and other recreational interests at committee; among from the members of the springs municipal fer-fed as well as and in- (17) temporary appointed one director jock- dustrial users downstream—still will be jointly by the Commissioners Courts of Medi- eying aquifer's for a favorable share of the County County na and Uvalde who must be a bounty through permits.”). counties."). resident of one of those Antonio, City 27. Sierra Club v. San See, Dukes, e.g., Tom Water Use Ed- (5th Cir.1997). F.3d Cut, Morning Aquifer wards Must Be Dallas July ("Pumping 1996, at J6 too News, 1.092(d). 28. EAAA during much water from the the Edwards drought aquifer’s current threatens the water (1996) (to Reg. 29. 21 Tex. be codified at quality well the as as amount of water avail- able.”); Editorial, §§ Rules, 31 Tex. Admin. Code 701.1-.6 and Aquifer Pumping (Ed- 701.11-.22) 1996) (proposed Aug. July at A8 ("A Am.-Statesman, Austin Auth.). Aquifer drought precious wards severe has made water to submit it. the historical data needed response In to com- filing deadline.30 the had been in ments, Authority plant moved the deadline APG’s New Braunfels the limestone, using wa following Monday.31 operation since to December ter, in changes, Authority and heat to manufacture lime used few other With on October proposed controlling sulphur rules water and adopted purifying 21,1996.32 As the Au- plants. November For effective emissions from coal-fired although the initial rules thority explained, on twenty-five years, plant had used pro- lay complete permitting out a did not average some 600 acre-feet—around cess, them because Authority proposed year.36 water a APG’s gallons million —of notice to provide it needed to it “believed Johnson, plant engineer, James undertook early possible as as existing users for the complete permit application to 30, 1996 will be the deadline for December Authority finding water but had trouble of historical use.”33 On declarations usage going data back to 1972. mid- 1, 1996, Authority proposed November Authority to telephoned December he governing process rules further usage whether he could estimate water ask reviewing permit applications,34which did data. A few and was told he needed hard February not become effective until deadline, days telephoned before the he 1997.35 that he would Authority again say gather not be all the historical able Authority steps publicize took information time. He was told that widely the December 30 deadline as too, Lime, having problems, others were possible. Respondent Chemical should, recalled, interest, “get he as he it when APG Lime predecessor Ltd.’s it.” you get you get it—when that data on Corp., permit application received a form conversation, mid-November, Based on that Johnson be by mail noticed the De application lieved he could submit the late. prominently printed cember 30 deadline form, began gathering application He was not told that if the top of the ("The injunction tags process applications ] Id. al 8402 for historical use [in Court, Supreme was dissolved Texas the time believed it needed to *7 effective, thereby became on June publish Audiority the Act this initial set of rules. The 28, keeping the the 1996.... In with intent of provide believed it needed to notice to exist- Legislature, require filing these rules ing early possible December users as 28, by declarations of historical use December 30, filing 1996 will be the deadline for decla- 1996, following months the actual date six goal rations of historical With that in use. Act.”). effective date of the developed. mind rules were The Au- these thority proposal and staff knew at the time of 11377, (1996) ("The Reg. 31. 21 Tex. that additional rules would have to be devel- proposed filing rule called for date of Satur- oped complete to most of the sections with day, December 1996. After further re- regard hearings applica- to the review and on view, changed date has been to permits.”). tions for 30, 1996, Monday, December the Au- because thority believes that this date is more consis- (1996) (to Reg. 34. 21 Tex. be codified legislative with intent tent and will avoid diffi- 701.31-.35, §§ at 31 Tex. Admin. Code applicants culties for who find themselves 701.91-.102, 701.51-59, 701.71-.77, needing applications file their on a Satur- 701.141-.147) (proposed & 701.121—. day Authority when the offices of the are 1, 1996) (Edwards Auth.). Aquifer Nov. closed.”). (1997). Reg. 32. Id. at 11384. 43,560 ("There feet— simply 36. An acre-foot of cubic 33. Id. at 11379 was not ade- water — 325,851 quate equal gallons. develop time to a full review and hear- to about water, late, in Barshop; APG would lose its or that he denied that the December file an deadline incomplete application could “established the Authori later, valid, it which supplement ty deadline”; deadline rule ... legal is not a Authority’s policy. was the proper that the February deadline was 1997; and that Chemical Lime’s permit until permit January APG did not file its application timely was filed. The substan did not Authority 1997. The notice tial-compliance jury, issue was tried to a it, process was late that it and continued which found for Lime. Chemical Based on permit APG in that a notifying April 1998 verdict, jury its conclusions and the issue for 618.2326acre-feet of water. would trial court rendered for Chemi acquired Chemical Lime APG’s cal Lime. The court awarded Chemical permit applica- and its in plant interest $481,948.72 fees, attorney Lime plus attor Not until tion. November did ney on appeal. fees Authority notify Lime that Chemical it application would be denied because was The court appeals affirmed but con- after the filed deadline. Chemical Lime application cluded that the permit deadline Authority but refused to protested, be six should months from issuance of the reconsider. mandate in Barshop, August or 1997.39 Authority Chemical Lime sued the “express[ed] court no opinion The regard- manager its general and directors their ing the legal validity status of acts capacities,37 seeking a official declaration performed under color of the EAA Act application that the should deadline have supreme between the June court set no been sooner than six months from Barshop and court’s issu- rehearing this Court’s denial Bar- ance on February mandate” which shop, would make Chemical Lime’s Having 1997.40 determined that Chemical application timely. Alternatively, Chemi application timely filed, Lime’s was sought cal Lime a declaration that it had court did not reach argu- Chemical Lime’s substantially complied with the EAAA’s substantially ment complied had requirements.38 permit The deadline-va the statutory permit requirements.41 lidity issue to the presented trial court The court affirmed the award of attorney stipulated facts. The concluded fees Chemical Lime.42 that the EAAA “became effective on Au 16, 1996”, gust rehearing granted date was We and its Authority acknowledges govern- 36.001(1). 37.The lulion”. Tex Water Code *8 immunity Authority by provision. mental is waived under from suit sec- created that Code, 1.02(b). 36.251 EAAA tion of the Texas Water which firm, person, corporation, "A states: or asso- persons by urged Chemical other ciation of 38. Lime claims that are affected dissatisfied us, takings any provision any including not before a claim with with rule or that or order by was severed in the a trial court. made district is entitled to file a suit against the district or its directors to chal- law, rule, lenge validity (Tex.App.-Austin the 39. 212 S.W.3d of the or order. 2006). competent The suit shall be filed in of a court jurisdiction any county in in which the dis- any Id. part trict of the district is located. The may only all suit be filed after administrative appeals to the district are final.” The term 41. Id. "authority includes "district” an created un- XVI, ... der Section Article Texas Consti- Id. at 698. set given review.43 its action in 1995—to an Because petition agents’ tended — deadline, only impossible we refer that when the aligned, interests are so their addressing effect, Authority argu- prohibit any their in EAAA took would the (1) Authority contends that ments.44 The of water the withdrawal Edwards permit application December Aquifer by regular permit. argument the (2) valid, the missing filing deadline was Legislature was that the had created a Lime failed to substan- deadline Chemical a regulatory preserve scheme to crucial statutory require- tially comply with the only that was not to fail resource destined (3) law, permit a as a matter of ments for but to fail. characterized this intended We pre- of Texas chapter 36 the Water Code logical the argument as “nonsensical” and attorney fees an award of to Chemi- cludes it “absurd”.47 result of Declaratory Judgment under cal Lime the explained position this We State’s requires attorney fees Act and an award way: argu- address Authority. to the We these urges that we should inter- The State in turn.45 ments pret directory the March 1994 date as mandatory. than The State rather
II that we consider the maintains should validity To determine Legislature intent of construe Authority’s permit ap December merely require date to that the dec- this deadline, filing begin with our plication be filed larations with six argument Barshop. One decision months after the eventual effective date against constitutionality that case agree of the statute. We impossible the EAAA was that it set an State.48 compliance: condition for March Thus, “too adopting instead literal expired filing deadline that had before statute, pre- construction of a which would Authority had come into even existence46 according vent the enforcement of it Legislature had amended the But intent,”49 pragmatic true we took a more preclearance objec EAAA in 1995 to meet effect, approach. Stephenson noted We yet tions so that the Act could take Stephenson,50 statutory we had held that a changed not the deadline. had So be, period argument only appellate transcript had not civil newly ap- be with the created courts of deadline set the EAAA turned out to Legislature peals begin to “the impossible, appel- but in- did not run until (Jan. 2008). Sup.Ct. argument, we express 51 Tex. no J. 329 this it. 44. We have amicus received briefs for County Underground Antonio, v. Medina City of State of Texas and the San Dist., Water Conserv. (Tex.1996). support both in reversal. Texas, curiae, 45. The amicus State of ar- Id. at 629. that, gues judgment against because always superseded by the *9 State is State's fil- 48. Id. at 628. ing Authority appeal, of a notice the had of any implement the discretion the EAAAat to Thus, Dyer, (quoting 49. v. 145 Id. at 629 State Tex. Barshop pending. time while was it 813, (internal 586, (Tex.1947) 30, 815 argues, filing the 1996 deadline December omitted)). quotation marks regardless was when our in valid decision Barshop legally analy- effective. became Our require sis of the case 50. 22 150 does not us to reach S.W.
401 began operations”.51 Authority late court clerk pressure under to expedi- act 1, “Similarly,” held that tiously, we “the March it any was concerned that later in 1994 deadline contained the deadline be subject [EAAA] would to challenge.56 provide was intended to users existing six Despite fact the that the Authority be- months to file their declarations of histori- gan operations 28, 1996, June Chemical cal Accordingly, interpreted use.”52 argues, held, Lime as the of appeals requiring EAAA “as declarations of that the EAAA did not become “effective” historical use to be six filed months after within the meaning Barshop until the Authority becomes effective.”53 in mandate issued that case on February prolonged delays Because of the in im- 10, points 1997. Chemical Lime to Rule EAAA, plementing it was not clear 18.6 of Texas of Appellate Rules Proce- long how it the Authority would take to dure, which provides that appellate “[t]he fact, begin operations. court’s judgment appeal on an from an took from the day over District the same interlocutory order takes effect when the Barshop in issued. The mandate is issued.” Chemical Lime ar- instantly EAAA gues transferred to the Au- that the same apply rule should in an thority all that was the District’s. Be- appeal from a final judgment. Alterna- cause the EAAA became effective imme- tively, Chemical argues Line sense, in diately practical the Authority EAAA did not become effective until re- Barshop require read a filing hearing deadline was denied in Barshop on August later, six months irrespective of further But arguments 1996. none of these Court,54 proceedings in this although support find in itself. Barshop As Chemi- days extended the deadline two from Sat- cal Lime properly acknowledges, Bar- urday Monday.55 Not only was the shop’s approach to resetting the filing 51. at filing 630. require of declarations of historical use six months after the actual effective date of Adopting the Act. the later date would 52. Id. also expose applicants those who file would after 30, 1996, litigation attacking December Id. filings untimely.”). (Nov. 22, 1996) Reg. Tex. 21 31; Johns, supra 55. See note see Pitcock v. ("A filing commenter contended that the date (Tex.Civ.App.-Aus 565-566 28, 1997, February should be which is six ref'd) (citing tin writ Gardner Univer Supreme months after the date Texas Co., sal & Accident Ins. S.W.2d 582 Life August Court issued its mandate (Tex.Civ.App.-Dallas writ w.o.j.) dism'd County in Underground v. Medina and former § Stat. art. TexRev.Civ. District, sending Water Conservation the case (1925) (“ month.”), ‘Month’ means calendar back to the trial court. The date stated first codified as art. Tex.Rev.Civ. Stat. 30, 1996, rule is December six months (1879), currently § 10 as Tex. Gov’t Code Supreme after the Texas Court dissolved the 312.011(7)); Campbell see & also Son v. injunction trial court that had blocked the Act Co., Tex.Supp. William G. & Lane taking effect. The staff adheres to the (1860); Op. Att’y Tex. Gen. No. 0-1492 date, fully December the Act because became (1939); 311.014(b), (c) cf. Tex. Gov't Code injunc- effective on June when the that, (providing construing provi a code tion was dissolved. The dissolution sion, day any period ”[i]f the last is a effective, injunction immediately and was Saturday, Sunday, holiday, legal period or delayed by subsequent procedural steps not day is extended to include the next that is not Supreme Court. The staff recommends Saturday, Sunday, legal holiday.”). against adopting February date because it Legislature's is inconsistent with the Reg. intent to *10 of aspect this is an strongly suggest that Bar- entirely pragmatic.57 was
deadline procedure on that could well based not filing appellate deadline Texas set a new shop procedural proce- occur- rules and of some from more definite legal effect benefit the practical conclude, however, but on the that this case in that We rence dures. Authority’s commencement in decision reality the not on when our of case turns effective, operations. when the Barshop but became issue, On that Authority became effective. alternative, focusing in the Further Authority no that the the facts leave doubt Lime practicalities, Chemical on instead fil- permit application set the permissibly Legislature’s intent the that since argues 30,1996. deadline at December ing was, in Bar- as stated the EAAA in existing users six months provide shop, “to of historical file declarations their Ill
use”,58
should run from
period
that
Lime
jury
The
found
Chemical
Authority’s
gov-
rules
of the
effective date
EAAA’s
substantially
with the
complied
process
erning
application
—November
requirements, and the
application
permit
earliest,
at the
from the date
1996—or
judgment on their ver
trial court rendered
proposed August
were
those rules
—
Authority
that
The
contends
Chemi
dict.
argument,
an
not that
this is
1996. But
substantially comply
Lime failed to
cal
but
Authority
Barshop,
misconstrued
statutory
as mat
requirements
wrongly
There
decided.
that
The
was not addressed
ter
law.
issue
indicate
the inevitable
that
nothing
is
appeals,
but it has been
rules would have
delay
promulgating
Court, and we elect to re
briefed in this
the EAAA taken effect
any less had
been
it.
solve
possible
final
It was never
in 1993.
in effect six months before the
rules to be
compli
The doctrine
substantial
did
lack of final
filing
Nor
deadline.
law,
ance,
certainly familiar to the
though
filing process.
The diffi-
hamper
rules
definition, so we be
comprehensive
lacks
any
lay
faced
not in
uncer-
culty applicants
assumptions
limiting
with several
gin
apply
tainty
what rules would
but
over
here do and do
parties
based on what the
on
use.
required
data water
gathering
assume,
argue.
because the Au
not
We
applications
of more than a thousand
Out
contrary,
thority
argue
not
to the
does
received,
only twenty-two
require
not
strict
EAAA does
late,
and there is no evidence
were
re
compliance
application
with permit
promul-
any
attributable to
delay was
assumption
The
ais
reason
quirements.
Authority’s
rules.
gation
one,
express
one of the EAAA’s
able
since
is that a “declaration of his
requirements
have
much attention
parties
The
devoted
when,
must
filed ... on a form
torical use
be
problems
determining
to the
directors]”,59
matter,
by the board
appellate
prescribed
[of
an
court decision
general
nothing
though there
to indicate
concurring opinions
takes effect.
plain
filing
paper
the same information
light
problems
on these
helpful
shed
Barshop,
("The
ready
accept
filings.
Respondent
Court select-
such
57.Brief
630.”).
trigger
prospective
date for the six-
ed that
925 S.W.2d at
Stephenson Stephen-
month clock based on
son,
(Tex.1893),
ties agreed that a filing The notion deadline can the We jury charge. the law for ment of with complied by sometime af- filing be relevant, further, to the extent it is assume is, say ter the deadline falls due the ar- not again Authority the does because least, notion, surprising a it is a otherwise, in that Lime tried gue Chemical without If 1- limiting principle. notion by permit application file its good faith to are day filings acceptable, 10-day late that Although the it would seem deadline. filings might be equally acceptable, late statutory person a who meets essential in a exceptions and so on cascade of that requirements substantially complied, has the engulf by would rule erected faith, it complete acting good even if not deadline; yet where filing regardless of a faith is not person’s good is clear that set, the cutoff line is some individuals compliance for substantial enough just fall always will on the other side of statutory requirements like essential deadlines, Filing of limi- it. like statutes Finally, are not met. since deadline tations, necessarily harshly and operate approved Authority initially Chemical with arbitrarily respect to individuals noticing before that application Lime’s them, just fall on the side of who other late-filed, we assume that Chemical concept filing if the of a deadline is but statutory require- with all complied Lime content, any to have the deadline must filing except the December ments Any rigid enforced. less standard be is, Lime is deadline —that Chemical risk a lax attitude encouraging would by con- existing user established dates. filing filing toward A deadline beneficial use of under- vincing evidence with, complied substantially be cannot during ground aquifer water from otherwise, by filing late —even one Since period before June 1993. 21-year day.61 barely pay- late mentions Rather, the issue is whether Chemical fee, question we decide ment of the substantially complied per- Lime with Legislature to this: did the boils down process, application requirement mit one permit application filing dead- consider filing of which was deadline. line to the essential EAAA? importance of a fixed deadline The yes. Legislature
We think the answer must be
in the
apparent
EAAA.
clear,
whether
picked
specific,
To be
the issue is not
date
which
calendar
to be
substantially complied
permit applications
required
Lime
were
Chemical
delegate
responsibili-
A
not
It did not
filing deadline.
deadline is
filed.
estop-
accurately:
necessarily
equitable
ynche
"An
in a misse is
not
bar
use of
More
circumstances,
good
an ell." W.
as
rever
pel
those
the Court’s
Camden,
Remains Con-
(2d
1614).
cerning
Britain ed.
An ell was
the claim
did not in itself establish that
sal
by English tai-
of measurement
unit
used
ultimately
mining
their
ants would
forfeit
lors, usually 45 inches.
claims,
proceedings
after remand.
further
110-112,
In the case
Id. at
S.Ct. 1785.
Locke,
100-
United States
471 U.S.
bar,
pending in the dis
claims remain
other
(1985)
EAAA deadline. Chemical be just,70 considerations ad- substantially Lime’s late did not dressed to the trial court’s discretion.71 comply permitting -with the statute’s re- Now that Chemical Lime is no longer the *13 prevailing party, quirements. trial court should
have the opportunity to reconsider IV award. The trial court awarded Chemi Because the Authority pre has attorney cal Lime fees under the Declara vailed, it is attorney entitled to fees under (DJA).
tory Judgment Act Authority The 36.066(g) section of Water Code.72The argues only it can be sued under parties stipulated below to the amount of Code, chapter 36 of the Texas Water and those fees.73 chapter provide recovery does not for attorney by plaintiff. fees While V provide section 36.251 does for against suit Accordingly, the court of appeals’ judg- Authority,67 section 36.254 states that ment is reversed and the case is remanded remedy not legal “do[es] affect other to the trial court for further proceedings equitable may remedies that be avail consistent with opinion. this Authority able.” The has not advanced argument why we should not take section Justice BRISTER filed a concurring 36.254 at its opinion. word. Nor does the Authori
ty argue permits that the DJA an award of Justice WILLETT filed a concurring attorney only fees to a prevailing party, an opinion. express issue on which we opinion.68 no BRISTER, Justice concurring. challenge does not the rea necessity sonableness or of the fees award It student, has been said that “any law by school, ed the trial court.69 But an award must after a month in law knows that the supra ("In 67. See note 37. 70. See Tex. Civ. Prac. Rem.Code 37.009 & any proceeding chapter, under this the court Am., N.A., Compare v. Vincent Bank may award costs and reasonable and neces- (Tex.App.-Dallas S.W.3d pet. sary attorney’s equitable fees as are denied) (a nonprevailing party may recover just."). attorney Declaratory Judgment fees under the Act), Corp., Brush v. Reata Oil & Gas Bocquet Herring, 972 S.W.2d 20-21 (Tex.App.-Waco pet. denied) (same), McCraw, Maris v. 902 S.W.2d (Tex.App.-Eastland writ de nied) (same), Ass’n, (“If Tanglewood § 36.066(g) Homes 72. Tex. Water Code the dis- Henke, (Tex.App. Inc. v. prevails any trict suit other than a suit in n.r.e.) Houston [1st writ ref'd Dist.] intervenes, voluntarily which it the district (same), City County Houston v. Harris may grant, seek and the court shall Ass'n, (Tex. Outdoor Adver. action, fees, recovery attorney's same for 1987, writ) (stat App.-Houston [14th no Dist.] witnesses, expert for costs and other costs ing that it is an abuse of discretion to award incurred the district before the court. The attorney party fees to a who is not entitled to attorney's amount of the fees shall be fixed relief). declaratory court.”). The trial court awarded Chemical Lime parties stipulated Authority's 73. The $481,948.72 that the attorney incurred fees $253,525.50 attorney reasonable through fees were judgment, plus rendition of final $100,000.00 $100,000.00 the trial attorney through pro- court and would be fees ceedings in this appeal. Court. X,’ join I in the Court’s cordingly, ‘For ‘Define is: question
answer except those defining parts this all of its are we purpose what ”1 case, up in the air. general we must define rule In this that leave term?’ reasons, deciding logi- purpose of the obvious and for the For several effect” “take law, not decisions judgments become rule is that our general cal when judgment. final. One would think they effect on the date of become should take would become from this Court judgments Indeed, there is no immediately. the law Judgment Is The I. What Matters Day” if “Judgment the term foreboding in all, with the we should start First *14 Day.” “Mandate nothing happens until by judg- are decided principle that cases that our deci- with the agree I Court ments, Judgments are ren- not mandates. they say whenever we can take effect sions court,8 majority of the by the and a dered finance in the school example, For do. Mandates, by agree must to them.9 the effective date of postponed cases contrast, signed by and are drafted months,2 another judgment for seven one clerk;10 rarely them. As judges even see months,3 for more than six and another years Pope wrote for this Court 80 Justice long judgment after the year4 —all “Judges ren- v. ago Burrell Cornelius: Simi- final and the mandate had issued. enter them on the judgment; der clerks special cases the larly, in a handful of take ef- minutes.”11 Our decisions should provided appellate that an Legislature has act, not the clerk. justices fect mandate,5 effect
judgment takes before Second, mandate,6 appellate recognize rules the mandate.7 after binding act many places operative that the cases, except special But in such man- judgment, is the not the parties of time for courts to set would be a waste date: individually. date Circum- each effective during appeal, judg- party (cid:127)when a dies may special dictate when stances will effect, appellate judgment “the court’s take but for all other ment should and effect as if Ac- have the same force judgments general we need a rule. 102.074(c) (providing Working Group Hyde, Response to See 1. Alan. Tex. Lab.Code days effect 11 labor arbitration takes Proposed Chapter 1 Restatement Em- decision). Restatement, appellate after date of ployment Purposeless Law: On (2009). Poly’ J. 87 Emp 13 Emp. Rts. & 61.34(c) (providing 6. See Tex. Alco. Bev.Code by beverage if alcoholic license issued Kirby, Edgewood Indep. 777 2. See Sch. Dist. appeal, court is reversed on order district (Tex.1989) (postponing effec- S.W.2d 399 appellate court automati- “the mandate of the opinion May tive date of October 1989 until license"). cally invalidates the 1, 1990). 7.02(F) (allow- Corp. Act art. 7. See Tex. Bus. Orange-Cove Indep. Neeley v. W. Consol. See up ing period corporate defaults to 60 to cure Dist., (Tex.2005) issues). Sch. days appellate mandate after (postponing effective date of November 43.3, 43.5, 46.1, See, 43.1, e.g., P. Tex.R.App. 1, 2006). opinion until June 46.2, 60.5. Indep. 4. See Carrollton-Farmers Branch Sch. P. 41.1. Tex.R.App. Dist., Indep. Edgewood Dist. v. Sch. (Tex.1992) (postponing effec- P. 18.1. January tive until date of 1978). (Tex. 1, 1993). 11. 570 S.W.2d June parties rendered when all were liv- should not wait for the mandate. If a ing”; judgment unconstitutional, declares a fee collection ought to office, stop once.17 If our public (cid:127)when officials leave their judgments have no effect until the man- appel- successors “will be bound issues, date they then ....”;13 do not mean what late court’s they say.18 party voluntarily (cid:127)when a appears on outcome,
appeal, or learns of its Fourth, our standard stay treatment of opinion, judg- party “is bound orders shows judgments we intend to take ment, or order....”14 effect immediately. The clerk cannot lift a order; stay so, the court must do operative Because the is the our act court, procedure standard has been to stay of a lift a operative date should be the when we issue our judgment.19 The same date. practice is used in the appeals: courts of Third, judgments our should mean what stays are lifted when the judgment is- they say. “The controlling intention of the sues.20 If judgments do not take ef- court’s expressed is that on the fect immediately, parties then can do what- face the judgment....”15 If our judg- *15 they ever want in the purgatory between done, says ment can something or can’t be judgment and mandate. ought then that to be the law —immediate- ly.16 If a judgment Fifth, orders children taken for several decades we have tried from or parents, returned to their that to simplify the procedure rules of by insist- 7.1(a)(1) added). (emphasis 12. P. Tex.R.App. were final and mandate issued.” 984 S.W.2d 623, 626 But in that case the Tex.R.App. 7.2(b) added). (emphasis 13. P. Court, Clerk filed a writ of error this there- by superseding appeals’ judgment the court of Tex.R.App. added). (emphasis 14. P. 15.2 so that it did not take immediately. effect See Co., 51.1(b). 669, P. 15. Harrison v. Manvel Oil 142 Tex. 909,915 (1944). 180 S.W.2d rule, Applying 18. the same if we order the Wade, 63, Flanary v. 102 Tex. 113 S.W. injunction trial court to vacate an rather than 8, (1908) (holding 10 appellate reversal of ourselves, see, doing Ministries, e.g., so HEB judgment trial immediately barred en- Bd., Higher Inc. v. Coordinating Texas Educ. it, though judgment forcement of even had 627, (Tex.2007), 235 S.W.3d 661 then the superseded not been appeal and was not fi- postponed effective date would be until then. nal); Bank, Carpenter v. First Nat'l 20 S.W. 130, (Tex.1892) (holding Supreme 131 Court See, Than, e.g., Univ. Tex. Med. Sch. v. of once, quashing order writ "took effect at and (Tex.1995) 901 (noting S.W.2d 929 put parties position in the same as if no stay this Court lifted when it denied manda- entered"); quashal order of had ever been relief); Co., mus In re Helena Chem. 286 Heard, (Tex. Bichsel 328 S.W.2d 467 Christi, S.W.3d (Tex.App.-Corpus 495 1959, writ) Civ.App.-San (holding Antonio no 2009, orig. proceeding) (noting that Texas Su- police chief could contempt not be held in for preme stay granted Court lifted when it man- insisting polygraph on allowed court of relief). damus appeals during pendency rehearing of be- “punish taking cause court could not him for See, Gen., e.g., Attorney In re 257 Office of granted just for that we meant what we said (Tex.2008) (noting S.W.3d 697 that court injunction when we stated that the was dis- appeals stay of lifted when it denied manda- solved”); accord, Bohart, Matter 743 F.2d of relief); Transit, Rapid mus In re Dallas Area (5th Cir.1984). n. 321 7 (Tex.1998) (same); 967 S.W.2d Waite, Long In In re County we held the (Tex.App.- Dallas Waite v. denied) (dis- Clerk could contempt not be held in pet. for Houston [14th Dist.] charging improper an appeals missing fee "until the appeal lifting stay). as moot and judgment pur- date counts these bear date and ing judgments it. To Justice quote poses, deciding not count when deadlines run but does Pope again: in Burrell effect. when the takes tations runs for poses, including: Today, an pires in the court ment or order that above ments, “Signed books, legal Law the date » professors form and lawyers should becomes this appellate decision takes books judges should make _ filing a bill when signature should there dormant;23 should so correct their appeals;22 day plenary power teach, writers of are so on each of_, draft the words: many pur- when limi- review;24 when a certain effect judg docu ex- we parties involved in the case. which third ment, tively ly for all who are not Usually odd for date.28 This our Sixth, declare apply sister parties not the date of case judgments take our a decision the law from the date of court too.29 would be our standard retroactively,27 before opinions appears decisions they take prospectively only, in to be the apply both finality parties in to take It practice effect but effect for immediate- practice sometimes effect for the man- the case. has been prospec- judg- very finally, expect lower Seventh and indemnity third-party claims ac- crue; courts to follow our decisions without re- tolling ego ends and when on alter ceiving if order to do Clarity certainty explicit are lost so.30 claims.26 F.D.I.C., Cornelius, (same); Huston v. Burrell v. *16 (Tex. (Tex. 1990) (same); 1978). 849 also see Moser v. U.S. 99, (Tex.1984) Corp., Steel S.W.2d 103 676 (applying opinion prospectively from date of See P. 19.1. opinion opinion first rather than on rehear Co., ing); v. Cessna 665 Duncan Aircraft 34.001; John & Rem.Code Tex. Civ. Prac. 414, (Tex.1984) (same); S.W.2d 434 In re J. Bell, 714, F. Co. v. 302 Grant Lumber S.W.2d J., 188, (Tex.1981) (applying 617 188 S.W.2d 1957, ref'd). (Tex.Civ.App.-Eastland writ 715 prospective pending to case decision still issued); when decision see also Acord v. Gen. Barnes, 535, 24. See Caldwell v. 975 S.W.2d 111, (Tex.1984) Corp., Motors S.W.2d 115 669 (Tex. 1998); 538 see also Tex. Prob.Code (applying prospective decision from date re 55(a). overruled). hearing But Lohec v. cf. Ct., County Comm'rs 841 Galveston S.W.2d Energy v. Ingersoll-Rand Co. Valero See 361, (Tex.1992) (applying n. 4 366 decision 203, 1999); (Tex. Corp., S.W.2d 210 997 prospectively judg from date of trial court's P.C., 6, Gregg Gregg, & J.M.K. Inc. v. 192 ment); Felderhoff, v. 473 S.W.2d Felderhoff 189, (Tex.App.-Houston [14th S.W.3d 200 928, (Tex.1971) (applying pro 933 decision pet). no Dist.] occurred). spectively from date accident Co., Rosen, 26. See Constr. Inc. v. Matthews Cullen, 29. See v. 195 S.W.3d 699 State 796 694 S.W.2d ("Effective (Tex.Crim.App.2006) from the date opinion, requirement upon of this is: Buecher, Homes v. Centex request losing party on a motion to Smith, (Tex.2002); Elbaor v. 845 277 evidence, suppress the trial court state shall 1992). (Tex. S.W.2d 250 State, findings.”); v. its essential Geesa 820 (Tex.Crim.App.1991) (ap- S.W.2d 164-5 Gandy, plying prospectively from Fire and Cas. v. decision date of See State Farm Co. (Tex.1996) opinion). (applying de S.W.2d prospectively opinion); cision date of Elbaor, (same); Rapid Reagan Amalgam- Transit v. 30. See Dallas Area 1990) (Tex. No. Vaughn, ated Union Local Transit cases, generally grant we mandamus the when the mandate issued much later. writ conditionally expect because we lower Opinions, rehearing, motions for and man- comply receiving courts to without course, can dates issue in due judg- but writ. we expect But how can lower courts ought ments to take immediately. effect comply opinions to with our if immediately It is true that in emergency we cases they yet have not takén effect? can order the mandate early issued deny parties to
II. What right file a motion Opinion? About the for rehearing.35 But prohibiting motions One could argue our decisions for rehearing missing can mean an oppor- should take effect on the of opinion date tunity correct a way mistake. The best rather judgment. than the date of In to make judgments effective immediately, cases remanded proceedings consistent mistakes, still allowing while is to make opinion, the lower courts must the effective date the have date of carry judgment. the judg- out ment.31 Of course in most opin- cases the
ion issue together, so the III. What About the Mandate? date effective for both is the same.32 But proposal that our de- different, in a Justice Willett’s they few cases are and in cisions should only take effect those when the cases date is more important. mandate issues will not pri- work for one mary reason: many after our opinions In a few emergencies, we have issued no there is mandate. only Mandates issue judgments or opinions orders with to fol- judgment.36 after a No mandate issues In Doe we low.33 For re example, is- when we deny petition, if even we do so sued a on March 2000 and opinion. written Nor do mandates is- the opinions three months later.34 such proceedings, sue in mandamus which we cases, clearly judgments intended the decide “judg- “orders” rather than immediately; take effect there was no required other ments.” If a mandate reason to them before opin- issue before the *17 ready. certainly effect, ions were And we this did not Court’s decisions take then judgments only intend those to many take effect of them never have and will. never 659, (Tex.2008) ("It 666 is appellate opin- fundamen- the date an "[o]n court’s down”). very appellate sys- tal to the of structure our ion is handed binding tem that this Court’s decisions be See, courts.”). 1, 300, e.g., the lower In Doe re 19 S.W.3d 300 (Tex.2000); Dellana, Water Texas Comm'n v. Eidson, Perry 31. See Bank v. 808, (Tex. Nat'l 161 Tex. 1993); 849 S.W.2d 809 n. 1 Daven- 340, 483, (1960) (noting Garcia, 73, 340 S.W.2d 487 n. 2 (Tex.1992). port v. 73 judgment that where a pro- refers to further ceedings 346, opinion, with the consistent court’s 34. 349 judgment nature "[t]he of the is therefore 49.4, by inspection 18.1(c), opinion”). determined an of the 35. See P. 64.1. Tex.R.App. (requiring Supreme ("The See P. 63 Tex.R.App. P. See 18.1 clerk the Tex.R.App. of opinion Court to "hand down a written in all appellate judgment court that rendered the in judgment,” cases which it renders a and issue must a mandate in accordance with the opinion judgment clerk to send both and judgment...."). clerks, to the regional lower court the admin- judge, parties); ("If istrative 52.8(c) and the see also Tex P. de- court relief, (requiring appeals’ R.App P. 48.1 court termines that relator is entitled to order.”). clerk to send appropriate both must make 410 looking without anyone how would know more. From 1892 until there’s
But years old? perhaps files 100 through from 1978, prohibited clerks Texas law until court costs were issuing a mandate in explained As we Continental Casual- Thus, example, 1963, the first rules in a mandate is paid.38 ty v. Street Co. in to courts provided: keep device intended procedure procedural of civil issuing conflicting orders: of a final or the rendition On to relating rules the return of Court, Supreme the clerk in decree trial appellate from the mandate deliver shall not issue and of said in procedural ... primarily court are court, certify nor the mandate orderly They provide for an nature. court, the lower until all proceedings judicial by adopting business dispatch in case accruing in Su- costs appel- both the procedures under which Ap- and the Court of Civil Court preme may courts have knowl- late and trial ... paid have been peals of pending litigation edge status prevent thus the issuance of con- months, paid within 12 were not If costs by the courts of the trial flicting orders simply dismissed and no the case was levels.42 appellate These rules were ever issued.40 mandate 1978,41 say but it is hard to how replaced are thus a means of communica Mandates courts; then were never many judgments they before were not even tion between So which of our required parties a mandate. to be sent until followed 2003.43 have never taken effect? And opinions court.”); 13, 1892, Leg., the docket of said lower see also approved April 22nd 38. Act 29, 1940, C.S., (adopted § Laws P. eff. Tex. Gen. Oct. 1st ch. 14 Tex.R. Civ. (codified 1, 1941, 1978) ("In procedure repealed rule civil Sept. cases 1978) ("The clerk of Su- amended which have been reversed and remanded preme deliver the mandate of Court shall not Appeals, of Civil if no mandate shall Court that court and of the court until all costs of taken out and filed in the court have been paid."); appeals have the court of civil been originated year within the cause one where approved April 22nd see also Act rehearing after the motion overruled C.S., 15, 47, Leg., 1892 Tex. Gen. 1st ch. rendered, upon then final 1978) (amended pro- (companion Laws below of a certificate of the clerk the court appeals). vision for court of civil Appeals where the cause of the Court of Civil has taken pending that no mandate been 29, 1940, (adopted P. 507 Oct. Tex.R. Civ. out, case be shall dismissed from 1978); see Sept. also eff. amended 10, 1901, docket.”); approved April Act 27th 29, 1940, (adopted Oct. eff. Tex.R. Civ. P. 443 R.S., Leg., ch. Laws Gen. *18 1978) 1, 1941, (companion Sept. amended 122, 1978). (repealed examples For of 123 appeals). civil rule for courts of rules, application Dignowity the these see v. of 505, (1919); Fly, Tex. 210 S.W. 110 506 29, 1940, (adopted Oct. P. 509 40. Tex.R. Civ. Clay Ballast Davy Burnt Co. St. Louis Sw. ("When 1978) Sept. repealed a eff. Co., Ry. (Tex.Civ.App.- 32 S.W.2d 211 remanded, no mandate case is reversed 1930), ref'd, Dallas writ 32 from the ren shall issue after twelve months (1930). judgment Supreme dition of final Court, overruling or a motion for re the (amended by P. 507 & 443 See Tex R. Civ. hearing. a is reversed re When cause 11, 1977, 1, 1978). July Jan. order of eff. Court, Supreme manded and the man date not out within twelve months as is taken 42. 364 S.W.2d then, upon provided, hereinbefore of the clerk of the court below of a certificate Tex.R.App. 2003); (1997, Supreme has been Court that no mandate P. 12.6 amended Tex.R.App. out, (1997, 2003). be from taken the case shall dismissed P. amended 18.1
4H cases, may en- But in other be best for the provide rules why the This is only proceed, appellate after trial court to with the our decisions forcement of our taking only court’s orders effect with the Postponing mandate.44 enforcement postponing as is not the same mandate. The reason our rules abate the decisions injunc- indeed they effective; interlocutory appeals are effective date in until mandate, cannot be declaratory judgment say nothing or but about abat- tion unless it becomes by contempt enforced for final ing appeals, the effective date is Appellate earlier. effective sometime are not because the two the same. .cases turn- entertain motions for do not courts over, those contempt; or garnishment, Finality? IV. What About trial court. Absent filed in the must be finality goal, If is the the mandate is not can be this means case supersedeas, all, the answer. First of mandates issue at once. such in two courts proceeding final;48 days judgment any is after trial cases, our notice to the the mandate is the effective date argument postpone new enforcing a it can start court finality justify postponing it until does not proceed or with enforcement
judgment
Moreover,
days more.
can
mandates
toes.
stepping on our
the old one without
recalled;49
judgments and
be
so while
in an inter-
why judgment
a
This is also
opinions
change,
can
mandates can too.
when the
locutory
“takes effect
appeal
say
is that it is hard to
problem
an in-
again,
Here
mandate is issued.”45
when our decisions are final. The rules of
(unlike
appeal)
final
appeal
a
terlocutory
place
explicit
no
limit on our
procedure
in two courts at
pending
the case is
means
power,
they
as
do for the courts of
plenary
result,
poten-
daily
a
there is a
once. As
And as we have noted several
appeals.50
conflicting orders. The standard
tial for
before,
“final” for
judgments
times
become
in one of the two
is to abate action
solution
times.51
purposes
different
different
courts,
we do in cases of dominant
Thus,
of review
Sometimes,
purpose
jurisdiction.46
statute
Court,
judgment
Supreme
States
the trial United
stay
appeals
keeps
from the
court
immediately, not
is “final”
conflicting orders.47 from this Court
issuing
court
18.1(b);
51.1(b) (“When
F. Grant
trial
48. See
P.
John
Tex.R.App.
P.
Tex.R.App.
mandate,
Bell,
(Tex.
appel-
clerk receives the
Lumber Co. v.
enforced.");
be
ref’d)
late court’s
must
(Although
Civ.App.-Eastland
writ
("If
Supreme
P.
Court
65.2
mandate cannot issue until the
judgment,
need not
the trial court
renders
final,
not
of a mandate was
“the issuance
Upon receiving
any
make
further order.
”)
necessary
judgment final.’
render the
'to
mandate,
the trial court
Supreme Court's
(citing
Mercantile
Gin Co. v. Thomdale
Cont’l
proceed
enforce the
clerk must
Co.,
(Tex. Com.App.1923,
254 S.W.
case.”).
any
Supreme
Court as
other
judgment adopted)).
Tex.R.App. P. 18.6.
TexR.App P. 18.7.
Rio,
Perry
v. Del
46. See
rule,
(Tex.2001) ("As
involving
*19
when
a
cases
50. See Tex R. Civ. P. 19.
brought
subject matter are
in differ-
the same
courts,
with the first-filed case
ent
the court
Mathew,
751
51. See Sultan v.
pro-
jurisdiction dominant
should
has
ceed,
'final,'
(Tex.2005) (noting
as
that "the term
abate.”).
should
and the other cases
judgments,
more than one
applied to
has
Ap-
51.014;
Ct.
meaning”);
v. Hon. Second
Street
&
See
Tex. Civ. Prac.
Rem Code
(Tex.1988).
peals,
301
P. 52.10.
TexR.App
when the mandate issues.52 For purposes
* * *
judicata
of res
and collateral estoppel, a When a mandate conflicts with a judg-
also “final”
judgment
appeal
is
even if the
opinion,
ment or
it is the mandate that
Holding
judgments
is not.53
that our
do
yield.56
must
The same should be true
they
until
not take effect
are “final” serves
regarding when our decisions take effect.
only
they
actually
to confuse
take
over,”
Perhaps “it ain’t over till it’s
but a
effect.
judgment
Supreme
from the
Court of Tex-
ought
as
to mean “it’s over.” Accordingly,
matter,
judgments
As
historical
a general
rule I would hold that our
change
rehearing.
almost never
In the
decisions take effect when we
judg-
issue a
years,
last 10 fiscal
this Court issued more
ment.
majority
per
than 1100
curiam opin-
rehearing,
ions. On
we changed less than
WILLETT,
Justice
concurring.
50 of the opinions,
always
and those almost
I agree with the Court that under Bar-
in
respects
minor
that had no effect on the
shop1 Aquifer
Edwards
Authority be-
judgment.
only
four
pre-
cases did the
came effective on the
date of our
party in
vailing
change.54
us,
that case. The issue as briefed to
Thus, the chance that
original judgment
however, and as
length
addressed at
will differ from the final judgment is about
the court
appeals,
raised more funda-
1 in 300. We should not let
long
such
odds
legal
mental
question:
ap-
When does an
general
dictate the
rule about when our
pellate-court
judgment become final and
judgments take effect.
take effect? This vexing question will no
and,
view,
doubt recur
my
warrants the
Finally,
there are also constitutional
rulemaking
Court’s
attention. To some
deciding
considerations in
when our deci-
degree,
the issue
has
certain “angels
sions take effect. The Texas Constitution
dancing
it,
on the
pin” quality
head of a
grants
Legislature
power
alone the
(to some)
interesting
as a matter of logic
suspend laws.55 That provision has never
(to all)
and perplexing
as a
prac-
matter of
prevented the courts from suspending a
tice. It
sure,
is confounding, to be
but also
law that
itself
is
unconstitutional. But
consequential.
once
we decide that a law constitutional,
keeping
suspended
the law
during our
join
ad-
So I
and,
Court’s
steps leading,
ministrative
finality
BRISTER,
and a
like JUSTICE
most of its
(to
least)
say
mandate is
problematic.
opinion. But
general
as a
matter the bet-
ners,
13(3) (“The
See
R.
Sup.Ct.
time
Duenez,
(Tex.
to file a
shop mandate inappropriate is because is- suance of the merely mandate is the “min- isterial act” of a court clerk.4 I disagree. appellate An court’s mandate is the offi- The mandate under our rules is not a mere court, cial declaring order to the district ministerial postscript duplicative re- the parties, and all other interested per- minder. Our rules require appellate that the sons court has closed the book on mandate, courts to prepare without its review and is once-and-forall finished. which an appellate-court judgment cannot understand, therefore, I can why the court be enforced.5 appeals and Chemical Lime view the date of our mandate in Barshop as when Several statutes also tie the finality of the Authority and the Aquifer Edwards appellate-court decisions to issuance of the Authority Act became effective. po- Their mandate.6 If the mandate served no Tex.R.App. Yogi Kaplan, Berra with Dave When You 5. See (providing P. 51.1 that the Road, Come to a Fork in the Take It! 88 appellate prepare clerk must a mandate and 2001); DeVito, (Hyperion Yogi: see also Carlo appellate that the judgment court’s must be & Original Times an American enforced in the trial court once the trial court Life 2008) (Triumph 285-286 (explaining Books mandate); receives the P. (pro- 65.2 etymology Yogi- the offbeat of this famous viding that trial court clerk must enforce ism); Obenhaus, generally Stacy see also It judgment Supreme upon Court Appellate Ain’t Over 'Til It’s Over: The Man- mandate); receipt of the Court's In re Ford Courts, date in Texas Co., Appellate (Tex.2005) Motor 165 S.W.3d 15 The Advo- Appellate (orig.proceeding) (noting plaintiff cate: State Bar of Texas has no Section (2003). 4, Report right damages to recover from defendant "un- less or until a mandate to that effect issues authority 3. As to the of a court to reissue an trial, judgment, after possible appeals"). motion, opinion on its own see Raborn v. Davis, (Tex.1990) (hold 61.34(c) ("If § 6. See Tex. Alco. Bev.Code Court, ing that after settlement and license is issued on the basis of a district law, motion, change in the "on its own va court and that is reversed opinion judgment”); cates its Cocke v. appeal, appellate the mandate of the Smith, 142 Tex. automatically invalidates the license and the (1944) (holding, granting pe after mandamus applicant proportionate is entitled to a refund tition, "[ujpon further consideration of unexpired portion of fees for the of the li- motion, matter upon this this court its own cense.”); Act art. 7.02 F Corp. Tex. Bus. we are of the that we are without (providing that if of revocation or writ”); jurisdiction grant Prouty such corporate dissolution of certificate of authori- Musquiz, (1900) 94 Tex. 58 S.W. ty appealed, appellate is court shall in certain (holding that where the Court discovers error circumstances “remand the case to the trial question, its answer to certified "[i]t grant court with corpora- instructions to rectified, proper that the mistake should be defaults, opportunity tion to cure such such therefore, motion, of our own we order accomplished cure to be within such time specific given that the answer in our former after issuance of the appellate mandate as the aside, opinion be set and that in lieu thereof court shall determine but in no event more ..."). following answer be certified (60) thereafter"); sixty days than Tex. Gov't City 30.00142(d) 4. The of San Antonio (providing likewise refers to appoint- Code purely issuance of the special appellate judge mandate as "a ment of "automatical- procedure.” ly ministerial terminates at the time the mandate or man- *21 had declared Workers’ appeals be no there would purpose meaningful unconstitutional, they Act Compensation one. require need to and the Work- injunctions, issued had not addition, Appellate Rule of Texas In “ac- had Compensation Commission ers’ appellate- clear that makes 18.6 Procedure the Act implementing continued cordingly appeals, in accelerated judgments of the judgments notwithstanding essence, not effec- are time is of when contrast, stated in In we courts below.”11 be issues. It would the mandate tive until “[bjecause district Barshop that hold, Authority urges, as peculiar yet to be the Act “has injunction,” court’s ordinary, an unex- in that our by hold- but we concluded implemented,” instantly when takes effect appeal pedited injunction “is dissolved.”12 ing in that our plain make the rules only takes effect appeal7 accelerated distinguished appeals The court of is issued.”8 the mandate “when declaratory and its injunction trial court’s arguments as make several parties The if, immedi- reasoning that even judgment, judgment was the trial court’s to whether decision, “the Barshop dis- ately after our Barshop appeal, was on while superseded injunction enforce its trict court could not obliged the trial court was and whether ... this does not contempt power immediately upon its issu- Barshop follow court’s supreme mean that the the State was Authority argues The ance. and re- declaring the constitutional [Act] requirement from the exempt contrary decla- versing the district court’s Section 6.001 of supersedeas bond under also became effective ration Code, and Practice and Remedies the Civil Lime, too, contends time.”13 Chemical declaratory the trial court’s therefore judgment had no effect Barshop that the automatically suspended judgment was declaratory judgment the trial court’s appeal.9 perfected State issued, and that “[dis- until our mandate trial argues that the The also and declarato- injunctive tinctions between against enforcement injunction court’s purpose.” for this ry relief are irrelevant immediately when we the Act dissolved further takes issue with Lime Chemical Au- Barshop. in issued our decision that the State’s Authority’s contention Giles, where we stat- thority cites Poole automatically Barshop appeal notice of dissolving “order appellate ed that an judgment, the trial court’s superseded is effective immedi- temporary injunction as inconsistent characterizing position this not final.”10 It further ately though even the State took in Bar- position with the Compensation Com- cites Texas Workers’ noted the State’s Garcia, shop. Barshop observed mission v. which we the Court position that it was before the trial court and court though even Giles, 224, 248 S.W.2d appointed 10. Poole v. 151 Tex. case he was dates issue (1952). hear”). Garcia, Comp. Workers' Comm’n v. Tex.R.App. P. 28.1. (Tex.1995). P. 18.6. Underground Barshop County v. Medina Dist., well, argument con- Water Conservation 9. The State makes this tending appeal in that its "notice of automatically superseded the trial court’s S.W.3d at 694. judgment.” 13. 212 *22 “seeking implement authorization to ner inconsistent with our opinion in Bar- Act,” issued, shop regardless whether, and that we should construe the Act after it sense, in some merely require injunction “to that the declarations be technical im- mediately Authority filed with the six months after dissolved when so in stated Barshop the eventual or the judgment effective date of stat- trial-court was superseded Lime at the time. I argues assuredly ute.” Chemical that even if do suggest not parties may flout an ordinarily required appellate- the State was not judgment decision or bond, merely post supersedeas the trial court in because yet mandate has not issued. Barshop purported judgment in its to ex- deny ercise its discretion “to supersedeas Nevertheless, our Barshop decision was Judgment.” of this Chemical Lime con- still not “final”17 when in issued one im- tends the State not challenge chose portant sense: We were still free to recon- denying supersedeas order and should not it sider and hold the Act unconstitutional now be argue heard to that its notice of or otherwise correct or modify opinion in appeal Barshop automatically supersed- judgment. or authority This issuing of the Indeed, judgment ed in that case.15 court to modify its opinion judg- own or taking Authority’s argument logi- to its ment ordinarily extends until the mandate cal might conclusion mean the Act was issues, regardless of whether judgment effective when the State filed its notice of monetary, awards injunctive, or declarato- appeal in in Barshop and the six- ry relief.
month window for filing declarations of Although exceptional circumstances historical use expired before our mandate,18 we can recall the the date of 28,1996. issued on June the mandate ordinarily is the appellate notes,
As the
arguments
Court
these
court’s formal and final
signaling
order
it
regarding supersedeas and other issues
is finished with its review of the case and
are not dispositive,16
they
obscure a
considers its decision
judg-
final and its
key point. I do not
Indeed,
believe
trial court ment enforceable.19
by correspon-
parties
or the
would have
in a
acted
man- dence the clerk advised the trial court and
Barshop,
(emphasis
tangled
regarding
parties
pur-
final for all
immediately
were
ions
judgment of the
“The
issued:
mandate
issuance,
there would be no
poses upon
now final in the
of Texas is
Supreme Court
*23
for
a
and no reason
need for mandate
186, Tex.
cause. As Rule
referenced
above
early
to
mandates
courts sometimes
issue
satisfied,
P.,
we have
been
R.App.
has
timetable for re-
or to shorten the usual
today.”
of
As the
mandate as
issued the
hearing motions.
noted,
period
aptly
appeals
court of
mandate,
therefore,
is
The date of the
mandate affords
and
judgment
between
duties be-
parties’
the date the
generally
to correct an
opportunity
the court “the
case, it
the date
fixed.23 In this
was
come
commanding its
before
appellate judgment
regarding the Act’s
that all uncertainties
in the lower
enforcement
execution and
constitutionality
finally
were
and defini-
can issue a
appellate court.”20 An
tively dispelled.
ordinarily
than the rules
mandate earlier
making
good
has
cause for
prescribe if it
many pecu-
points
out
Justice BristeR
immediately
seems,
final and
more
it
judgment
(complicated,
its
liarities in the law
Moreover,
myriad
has
to
this Court
our inconsistent adherence
enforceable.21
practices).24
and internal
As be-
the time for
rules
discretion to shorten
opinion
judgment,
and the
I
rehearing or even to disallow tween
motion for
45.2,
(“After
the man-
Harper
the Clerk is directed to issue
judgment in the J.W.
suit
forthwith.”);
final,
duly
date in this case
United States v.
issued and
became
mandate
Nixon,
683, 716,
court.”);
Celo-
41
district
see also
418 U.S.
94 S.Ct.
returned to the
Edwards,
(1974) ("Since
Corp.
U.S.
115
this matter came
tex
514
L.Ed.2d 1039
(1995) ("The
during
pendency
L.Ed.2d 403
before the Court
of
S.Ct.
representations
Appeals
prosecution,
for the Fifth
and
United
Court of
criminal
on
States
affirmed,
essence,
issuing mandate on Octo-
mandate
Circuit
its
that time is of the
shall
12, 1990,
forthwith.”).
rendering
re-
thus
‘final’
issue
ber
Celotex.");
against
spondents’
judgment
Contractors,
Tex.R.App.
Charpentier
480 F.3d
v. Ortco
P. 64.1.
Cir.2007) (“Before
(5th
mandate
our
issues,
modify
power to alter or
we have the
R.App.
41(c) advisory
See
Fed.
P.
commit-
Accordingly,
judgment.
our decision is
amendments)
(“A
(1998
court of
tee's note
(footnotes
not final until we issue a mandate.”
appeals’ judgment
not final
or order is
until
Cresson,
omitted));
City
In re
mandate;
at that
time the
issuance
2008, orig. pro-
(Tex.App.-Fort Worth
fixed.”).
obligations
parties'
become
("It
ceeding)
that this court's
is true
until it
is not
in the trial court
is
enforceable
question
persuasiveness
do
of some
I
issues.”).
final and mandate
comparisons,
of Justice Brister’s
such as his
Indeed,
parties
not uncommon for
to
it is
proceedings,
to
"which
references mandamus
expedite
jointly request that the Court
issu-
'judg-
rather
than
we decide
'orders'
"
parties
ance
so the
can com-
of the mandate
J.,
(Brister,
ments.'
will issue when to enforce our deci- require respondent sion and to take ac- a appeal tion—similar mandate in an Justice Brister contends the mandate is an —we rarely imperfect have to so. proxy finality do for because "man- days judgment dates issue 10 is after completely agree I also cannot with Justice why postpone final” —so the effective date for assertion that no mandate issues Brister's days ten judgment if the is final? 291 S.W.3d deny petition a we for review. 291 J., (Brister, (footnote concurring) omit- (Brister, J., concurring). S.W.3d at 409 If we ted). ten-day period applies, This sometimes deny petition, appeals a the court of then always, practical but not and there is a sound judgment. a issues mandate to enforce its See reason for it. When the Court denies rehear- 18.1(a)(2). P. Tex.R.App. ing, immediately the mandate issues because is final. no There is second states, all, of we "First Justice Brister rehearing. motion for P. 64.4. Tex.R.App. principle should start with that cases are rehearing sought, When no is the mandate by judgments, Judg- decided not mandates. days issues ten after filing the deadline for a court, by major- are ments rendered and a rehearing seeking motion for or an extension ity agree of the court must to them. Man- is, of time to file such a forty motion—that dates, contrast, by signed by are drafted and days judgment. after See P. 64.1 Tex.R.App. clerk; judges rarely them.” even see ("[a] rehearing may motion be for filed ... J., (Brister, (foot- concurring) S.W.3d at 411 days within 15 from the date when the Court omitted). case, *25 rulemaking will focus process
Court’s important and deliv- on this issue
expertise going forward. bright-line guidance
er INC., TEXAS, Relator.
In re MACY’S
No. 08-0584. Texas.
Supreme Court of
June Tracy Phillips,
Michael William Free- man, Kieval, Evelyn D. Neal Ailts Der- wrong overruling anything there’s of the last motion for rehear- 27. Not that that. Corp., ing,” law—there is a matter fact—and some- Acord Gen. Motors As wrong with thing happens that. That date be Interestingly, when the mandate issues. days just Acord decided seventeen after P. 28. See amending making clear that a rule court’s interlocutory J., regarding an (Brister, order concurring). 29. 291 S.W.3d mandate did not take until the issued. effect Corp., v. Gen. In Turner Motors II, 1979), (Tex. Bishop & Daniel W. Steven McConnico I we stated what believe rule, Practicing Law with the 1984 Rules: Texas general deeming opin- "this is a sensible Rules Civil Procedure Amendments ... ion to be effective after the date on which Effective 1, 1984, final,” April 120-21 herein becomes which Baylor L.Rev (1984). in a "the date we clarified later case was notes Until this I had certain- ("[tjhe judgment”); renders P. 64.5 Tex.R.App. ly slight- never seen a mandate. have a But I may Court extend the time a to file motion for view, ly stylistic may different which be more rehearing ... aif motion ... filed ... is no judgments than substantive. While are in a days later than filing after the last date for "operative” opinions, sense more than I think 18.1(b) rehearing”); a motion for P. say by cases are decided—that is to (the reasoned— days clerk issue the “[t]en must mandate opinions, judgments. judgment, not The like expired filing after the time has a for motion mandate, separate ais document that sets file extend time to a for rehear- motion forth the court’s bottom-line and ad- decision ing”). ten-day postponement justified payment dresses the of like man- costs. And rule, by provides the so-called mailbox which dates, judgments are drafted Court’s days that if a motion is received within ten usually by judges. staff not reviewed Our timely it is deadline considered filed judgments, example, signed by are not proper if it was sent to clerk U.S. mail anyone, judge anyone either or clerk's properly envelope deposit- ain addressed designates But office. the fact that the Court day ed in the mail or before the last task to its staff doesn’t mean the action 9.2(b). filing. P. Since the TexR.App. Court, taken is not an official act of the nor way knowing Court has no whether a mo- significance. does it diminish Our man- rehearing tion of time to extension state, you dates command to observe rehearing “[W]e timely file a motion for will be filed deadline, Supreme the order of our said in the days simply Court until ten after behalf, things recognized, tight. and in all factor rule have in the mailbox and sit a deci- It seems odd that nothingness?27 fully yet effective neither be sion would final nor enforceable.28 that our decision with the Court agree I today’s case. I decides Barshop itself too, that our with Justice BRIster agree, say whenever we “can take effect decisions rule, do,”29 default I general but as they as a more-than- treat the mandate would equivalent judicial It is the clerical act. ‘Tes, disposi- final my answer” —the that’s appeal, declaring concluding the tive order enforceable, final and “recog- that the be commanding nized, I trust and executed.” obeyed,