FM Properties Operating Co. v. City of Austin

suit, class cus- hourly action and the rate charged region

tomarily for similar FM PROPERTIES OPERATING work). legal COMPANY, al., et Appellants, compensated fee contract here lawyers for “services rendered.” There is in the firm evidence record did some appeal work connection AUSTIN, Appellee. The CITY OF

both the cash deposit before and'after No. 98-0685. lieu of cost bond was filed. But the record Lopez family also suggests that Court of Texas. Supreme had a Westinghouse agreed principle to settlement, substantially lowering the risk Argued Dec. 1998. firm—a risk in all con- existing law June 2000. tingent might not Decided fee contracts—-that it may a collect its fees. contract While Rehearing Aug. Overruled 2000. lawyer entitle a fee for substantial work, may little or a lawyer no nonetheless his required by fiduciary duty

be or her Additionally, the fee. a law firm

decline fiduciary duty provides its if it breach services,

little no but still collects part recovery clients

substantial its pending

the face of a settlement.

By the law 'firm did a appearances, all

good job representing against its client

Westinghouse. The firm obtained a twen-

ty-five jury par- million dollar award

ticipated in million negotiating fifteen lawyers

dollar settlement. The should be

fully compensated for their work and they begrudge

risks assumed. I do not demanding compensation

them for for ser- according

vices rendered to their contract.2 clearly supported

But the demand must be construing And when the contract. clients, it is lawyers and

contracts between enough simply say

not a contract consider- contract. There are ethical overlaying

ations the contractual relation- just

ship. Lawyers mindful should con- obligations

of these ethical as their obligations.

tractual reasons,

For I part these concur in in part.

dissent appeals' appealing its cent the court of I note that the law firm indicated per- judgment. willingness repay five additional Code, allows certain

Water quality pro- “water landowners to create tection zones” in certain cities’ extraterri- jurisdictions, violates Texas torial conclude that it does Constitution. We unconstitutionally delegates leg- because islative landowners. Therefore, the trial court’s we affirm on as on at- judgment the merits well as Thomas, Taube, Robert D. Hohmann & torney’s fees. Taube, Taube, Hohmann, Eric Werner & Austin, Jung, Strasburger & P. Michael I.

Price, Dallas, Q. Minton, BACKGROUND Roy L. Fos- John ter, Collins, Minton Foster Aus- Burton & The Texas enacted section tin, Osborn, Joe A. Finch Kendall Randle in 1995.1 26.179 of Texas Water Code Osborn, Austin, Lockwood, & Julian § stat See 26.179. This Tex Watee Code Austin, Lochridge Kilgore, McGinnes & of tracts contiguous ute allows landowners Zimmerman, Powers, Mary Louis S. Pike 500 munici of at least acres within certain Dietz, Dean, Marcy H. Lyn S. Elizabeth jurisdictions palities’ extraterritorial Greer, Austin, Jaworski, Fulbright <& Mi- (ETJs) “wa designate their Firm, Burk, Burk Aus- chael G. The Law protection zones.” quality ter See Tex. tin, McKetta, III, Dough- John Graves J. (d). 26.179(c), § purpose The WateR Code Austin, erty Moody, Patton G. Hearon & is to quality protection of a water zone Baker, Patrick Lochridge, McGinnis Scott facili “provide flexibility necessary to Austin, Lochridge Appel- for Kilgore, & development tate the of land within lants. zone, is intended to result but which also McConnico, Stephen M. N. We- E. Jane protection quality of water bre, McConnico, Austin, Douglas Scott & within zone.” Tex. Code Watee Martin, City Atty., Casey Andrew F. L. 26.179(d). legislative § 26.179’s Section Dobson, Douglass Scott Luton & McConni- in history the statute was clarifies that co, Austin, Lipinski, K. Scott Jennifer large landowners tended relieve McConnico, Austin, Tommy Douglass & developers in certain cities’ ETJs Jacks, Jacks, Austin, Bay- Karl Mithoff & S.B. “regulatory Hearings on chaos.” Austin, er, Karl Bayer, Law Office Comm, on Natural the Senate Before Baron, Austin, appel- Pamela Stanton th 1995); Resources, 4, Leg., (Apr. R.S. lee. 2 n 71 Before House Hearings on H.B. opinion Comm., BAKER

Justice delivered 74th R.S. Leg., Natural Resources the Court in which Chief Justice 1995). 10, Accordingly, the statute (Apr. ENOCH, PHILLIPS, Justice Justice variety of exempts the from a landowners Hankinson, O’NEILL and Justice Justice including regulations, applicable otherwise joined. GONZALES quality regulations, and allows water a wa implement landowners to create appeal primary The issue this direct plan the zone. quality 26.179 of the Texas ter is whether section 19, parts approval after June 1999. amended relevant on or 1. th R.S., 1999, 28, 28, Leg., ch. May May 1999. section 26.179 in See Act of Act 5310, 1543, 2, R.S., 1543, § § Gen. Laws 5312. Leg., 76th ch. Therefore, do not The amendment the amendments Tex. Gen. Laws noted, cita all applies Except case. as otherwise quality plans water or amend version 26.179 are the 1995 Re tions ments submitted to Texas Natural for review of section 26.179. source Conservation Commission fil- designate 26.179(g). pre- Zones are zone Water satisfy ing sumed to all other state and local general and a requirements quality protection. fa- for water description quality protection of water 26.179(k). See Tex. WateR Code But proposed cilities and land uses for the zone comply the zone must deed records. development applicable county (f). regu- all laws and rules state commission 26.179(e), Land- WateR Code are in effect 1,000 lating owning contiguous owners 500 to designates the landowner date approval acres must secure their 26.179(k)(l). zone. quality protection zones from Texas Tex. Water Code two In addition to section 26.179’s Natural Resource Conservation Commis- objectives, the TNRCC re- zone. See sion a designating before Tex. quire quality protection and enforce water 26.179(d). § Landowners WateR Code comply mandatory measures feder- 1,000 owning may designate acres or more See Tex. quality requirements. al water a zone pre-approval without from the 26.179(m). § See Water Code TNRCC. Tex. Code WateR 26.179(d). § correspond- Zones and their may a plan Landowners amend ing water quality plans are effective imme- time. See Tex. Water time Code diately upon recordation in applicable 26.179(g). may § deny The TNRCC such county deed records. See Tex. WateR amendments if the TNRCC finds that 26.179(f), § (g). qual- A zone’s water impair Code plan the amended will the attain- ity plan is a running covenant with the 26.179(a)(1) (a)(2)’s ment of section or re- 26.179(h). See Tex. land. § See Tex. Water quirements. Code WateR Code § 26.179(g).

Section allows landowners general objectives choose between two in reviewing plan, the water quality (1) formulating their water quality plans: may not require hearings TNRCC background to maintain water levels of complete and approval must its review (2) quality waterways; or capture plan days of a or amendment within retain the first 1.5 inches of rainfall from See Tex. Water receiving plan. after developed areas. See Tex. § 26.179(g). may ap- Landowners Code WateR Code 26.179(a). § zone, For each registered peal plan a a TNRCC denial of a amend- professional engineer certify jurisdiction. must that the a court of competent ment in to achieve See Tex. Water Code quality water plan designed 26.179(g). § ap-On one See Tex. Water objectives. of peal, proof. these TNRCC of burden § For 26.179(g). purporting 26.179(g). § zones For Code Tex. Water Code 1,000 more, background to maintain plan levels of water acres or a zones of quality, the landowners determine wa- during amendment remains effective See ter quality levels be maintained set- appeal of TNRCC denial. Wa- ting up monitoring § 26.179(g). sites within the zone ter Code and collecting quality data from the requires The statute 26.179(b). sites. See Tex. Water Code § quality choose to maintain water back- unavailable, If such data are the landown- ground levels to monitor water for ers professional engineer must hire a after years phase develop- three each of calculate background using levels methods submit annual complete ment is and to See Tex. Water specifies. statute reports technical to the TNRCC for the 26.179(b). Code See Tex. WateR Code years. same three 26.179(b).

The reviews If the show that the reports TNRCC approve background but it unless did not plans, plan must landowner maintain implementing previous year, the landowner TNRCC finds levels modify reasonably quality plans will not attain one the must the water for quality objectives. development two water future the zone phases III, operational City and maintenance practices Austin violation article (3) existing phases 56; unconstitutionally of the zone “to the infringes section reasonably extent and practical.” feasible municipal home rule conferred (2). 26.179(b)(1), (4) For XI, 5; the City by article section Tex. WateR Code plans purporting to retain 1.5 inches retroactively impairs City’s vested rainfall, quality monitoring is not I, property rights violation of article required. (5) 16; allows landown- Tex. WateR 26.179(b). I, ers to laws in suspend violation article section 28. Landowners counter- designated, municipality Once a zone claimed for a declaration not enforce in the zone “ordi- sought 26.179 is attor- constitutional and nances, ordinances, rules, land use or re- ney’s fees. The State of Texas intervened to, quirements including, but not limited constitutionality. to defend the statute’s nuisances, pollution the abatement of con- and the cross- defendants filed trol programs regula- and abatement summary judgment. motions The trial tions, ordinances, subdivision judgment declaring court rendered a final requirements, other than technical review unconstitutional, section 26.179 without inspections connecting utilities specifying grounds judgment, for its municipally owned water wastewater permanently enjoined and the Landowners system, any regulations” environmental new zones or land designating adding that are with or impair inconsistent to zones. trial also existing The court ability land implement operate to and denied fees attorney’s the Landowners’ plan plan use and water filed. as 26.179(i). brought claims. this di- The Landowners Tex. WateR Code appeal asserting rect that section 26.179 is addition, city may In a not fees or collect they are constitutional entitled assessments or exercise of eminent attorney’s fees. a it domain within zone until annexes 26.179(i). zone. See Tex. Water And, until cannot annex zone II. APPLICABLE LAW ninety of zone’s percent facilities A. STANDARDOF REVIEW—CROSS -MOTIONS qual-

infrastructure in the described Summary Judgment ity plan being necessary carry out as twenty completed, or until move When both sides for sum years designation from the date mary grants and the trial court judgment passed, whichever occurs first. See Tex. other, re one motion and denies the 26.179®. WateR Code viewing court should review both sides’ summary deter judgment After the enacted section evidence and 26.179, presented. all Com designated questions several mine See City County Agan, zones in the Austin’s Zones missioners Titus v. of ETJ. Court of (Tex.1997); 77, v. designated any were munici- S.W.2d 81 Jones 940 (Tex.1988). Strauss, 898, City The sued of the 900 pality’s ETJ. several 745 S.W.2d designated reviewing court should render landowners who had zones ETJ, have seeking judgment a declaration that that the trial court should City’s 81; Agan, at section 26.179 is unconstitutional. rendered. See 940 S.W.2d v. City 26.179 violates Members Mut. Ins. Co. Hermann alleged section (Tex.1984). 325, Hosp., 664 S.W.2d 328 provisions various of Texas Constitu- (1) sum unconstitutionally granting tion it: dele- When trial court’s order because mary specify does not gates judgment landown- legislative II, upon, reviewing 1 and court grounds violation of article relied ers (2) III, 1; summary if of judgment is an unconstitu- must affirm article judgment grounds are meri- special summary tional law targeting local

873 Doe, law, Star-Telegram, provide torious. See Inc. v. the details of the (Tex.1995). 471, 915 promulgate S.W.2d 473 rules and law, upon and to conditions ascertain Statutory B. which existing may operate. laws Construction Found., Texas Boll Eradication Weevil If we possible, interpret a statute Lewellen, 454, Inc. v. S.W.2d 466-67 952 in a manner that renders constitutional. (Tex.1997); Housing Dal- see also Auth. Quick Austin, 109, v. 7 of S.W.3d 158, las 135 Higginbotham, v. 143 (Tex.1999); Andrews, 115 v. Proctor 972 79, (1940) categories S.W.2d 87 (providing (Tex.1998). 729, a facial entities, delegations including to public challenge constitutionality, statute’s delegations implement to make rules to written, we consider the statute as rather statutes, to find facts and ascertain condi- than it operates practice. See Proc tor, upon existing may tions 735-36, oper- law Barshop S.W.2d at v. ate, rates, to fix determine the County Underground Medina Water Con (Tex. question Dist., necessity taking land servation 925 S.W.2d 1996). use). But Because this definition of legisla we also consider del- egation tive history sweeps broadly, so it is not sur- reasonable constructions agency prising statute over charged “the debate unconstitu- implementing it. tional delegation becomes a debate not Gov’t Code 311.023(3), (6); point State Public Util. over a but over a principle ques- Comm’n, (Tex.1994). Weevil, 883 S.W.2d tion of degree.” Boll 952 S.W.2d States, (quoting Mistretta v. United Delegation Legislative 361, 415,

C. 488 U.S. Power 109 S.Ct. (1989) (Scalia, J., 714 L.Ed.2d dissenting)). The Texas Constitution “legislative vests power” in the Legislature. See Tex. Const. Although the Constitution vests Ill, § art. Defining 1. what legislative legislative power Legislature, in the courts power is or delegated when it has been recognized have in a complex society See, easy e.g., no task. Barber, The Con- ours, like legislative power Delegation Congressional stitution both necessary proper certain cir (1975); Jaffe, Power 38 Making Law by Weevil, cumstances. See Boll 952 S.W.2d Groups, 201,

Private 51 Harv. L.Rev. 248 Thus, at Legislature may 466. dele (1937). Generally, commentators have de- gate legislative to local power govern legislative fined power power as the to ments, agencies, administrative and even make rules public and determine policy. private entities under certain conditions. See supra, (defining at 38 Barber, legisla- Proctor, 972 at S.W.2d 734-35. The power “deciding tive as between conflicting Legislature may delegate powers agen proposals presented by clashing inter- carry cies legislative established to out ests”); SCHOENBROD, POWER WITHOUT RE- purposes long as Congress estab SPONSIBILITY: How Abuses People Through Delegation lishes to guide reasonable standards (1993) 181 (“The agency in exercising powers. those legislative essence of ... power is Weevil, 467; Boll conduct.”). 952 S.W.2d at see also the making private of laws of Meno, Edgewood Dist. v. Texas, Indep. In Sch. 917 legislative power is defined 717, (Tex.1995) S.W.2d 740 a broadly. (upholding It power pub- includes the to set See, delegation to the policy. lic Commissioner of Edu e.g., Chemical Bank & Falkner, 427, cation to adopt “necessary Trust Co. v. 369 rules for the 432 S.W.2d (Tex.1963); Lubbock, implementation Chapter 36 Davis v. of’ of the Edu 160 (1959). 38, 699, Code); Higginbotham, 326 S.W.2d cation 143 S.W.2d addition, 81, 83, many it at (upholding giving includes functions that a statute a aspects, to, have including housing authority power administrative among things, se- qualified condemn and to was “a neutral arbitrator” to hear tenants). housing Dudding lect service v. Auto appeals); civil 517, Co., matic 145 Tex. Gas 193 S.W.2d But delegations private because enti- (1946) adoption of stan (upholding troubling ties raise is- more constitutional by Fire Pro dards recommended National than public delegations, they sues are sub- Board of tection Association National ject to stringent requirements more regarding liquified pe Fire Underwriters judicial delega- less than public deference gas); Pub. troleum Ins. Counsel Proctor, 735; Office tions. See at Plan, Texas Auto. Ins. 860 S.W.2d Weevil, at Legis- Boll 952 S.W.2d 469-70. denied) (Tex.App. writ — Austin delegations private lative can entities private a (upholding delegation to associa compromise “the basic of demo- concept tion to make rules for the state’s republican gov- cratic rule under form providing liability motor vehicle insurance private delegates ernment” are because drivers). high risk elected by people, appointed by public entity, employed by official or explained But as further in Boll we Weevil, Boll government. 952 S.W.2d Weevil, once has we determine that there And, basis, practical 469. a more pri- then private delegation, been we must delegations may vate allow inter- private by it is determine whether constitutional adversely ests affect interest. analyzing eight under factors: Weevil, Boll 952 S.W.2d at 469. private delegate’s 1. Are the actions Nevertheless, in Boll explained as we subject meaningful review Weevil, private delegations frequently are agency state or other branch of state Weevil, necessary and desirable. See Boll government? Indeed, 952 S.W.2d at 469. dele private persons pri- 2. Are the affected gations extensively gov used in Texas vate delegate’s adequately actions routinely ernment. The decisionmaking represented in the delegated associations the process? certain promulgate pro industrial private delegate’s Is the limit- See, e.g., fessional standards. Gov’t rules, ed to the dele- making does 441.007(b) (requiring graduation Code law gate particular also the to a privately library accredited school individuals? li permanent county certification as Safety brarian); have a private delegate 4. Does the Health Tex. Code & personal § the interest (allowing Department pecuniary or other may public to ac with its privately Health issue licenses to conflict community support function? credited homes and agencies); services Tex. Occ.Code delegate empowered Is the private 5. (defining physician § 204.153 assistant impose to criminal acts or define graduated program who from a person criminal sanctions? accredited the American Medical Asso duration, the delegation 6. Is narrow Edu ciation’s Committee on Health Allied extent, subject matter? and cation and Accreditation who possess Does private delegate 7. the certifying the examination adminis passed special training or qualifications tered National Commission on Cer the delegated the task to it? Assistants); see also Physician tification provided Has suffi- 8. the Proctor, (upholding at S.W.2d guide private the cient standards entities, the private two delegate in its work? American Association and Arbitration 735; Proctor, Boll at Ser See 972 S.W.2d Federal Mediation Conciliation Weevil, 472. vice, at hearing examiner S.W.2d to decide whether delegates developed fall from areas. See particular legisla- If a statute WateR 26.179(a). owning § authority private entity tive to a and these Code But landowners 1,000 more, weigh initially, eight against delegation, factors acres or at least de- is See objectives then the statute unconstitutional. cide how achieve these Weevil, 952 at 475. Boll Wee- plans. Boll S.W.2d landown- their water While specify weigh 1,000 vil if factors any does not ers acres must secure owning 500 others, heavily impor- than more but their water zones pre-approval necessarily tance of each factor will differ TNRCC, owning from the landowners in each For Boll example, case. Weevil’s 1,000 can a zone designate acres or more analysis focused properly constitutional implement quality plan a water with- heavily on the first factor —whether there out from the See pre-approval TNRCC. meaningful governmental was review of (f). 26.179(e), § Only Tex. WateR Code Weevil, delegates’ actions. Boll after these are in does the plans effect at 473-74. one S.W.2d Because power. TNRCC have review Tex Wa- private delegations central concerns in 26.179(g). And if the TNRCC ter Code potential compromise of our “demo- appeals plan denies a and the landowner cratic a republican gov- rule under form of court, plan that decision in remains in ernment,” weighing heavily factor first throughout appeal process. effect appropriate whenever a statute dele- Further, 26.179(g). Water Code gates power to legislative private interest- sizes, for zones of all has the TNRCC Weevil, ed Boll parties. at 952 S.W.2d burden on the proof plan denial of or 469. Because other central concern is a plan. amendment See Tex. WateR potential may the delegate have a 26.179(g). “personal pecuniary or interest inconsis- delegates Section 26.179 also certain repugnant tent with public inter- exempt them- served,” est to be factor another municipal selves from the enforcement of heavily in weighs these kinds of delega- regulations. It authorizes landowners who is, course, tions factor— fourth designate to exempt zone their whether has a delegate pecuni- from the municipal enforcement those ary personal interest ordinances, rules, or requirements conflict with its function. Boll Wee- plan “are use inconsistent the land vil, quality plan and the water or which limit, modify, way impair ability

III. ANALYSIS implement operate the water Delegates Legislative A. Section plan land use the zone within to Private Power Landowners 26.179(f). as filed.” Tex. Water Code City The that asserts Section The are not municipal ordinances affected delegates legislative power pri to regulating quality. limited to those water agree. vate landowners. We ordinances, They include land use nuisance delegates pri- Section 26.179 to certain abatement, platting and subdivision re- power regulate vate landowners the to wa- quirements, control and abate- pollution quality ter on their and water- regulations, “any ment or and programs ways property. located their See regulations.” Tex. Water environmental Tex. § 26.179(d); Reg. 21 Tex. § Water Code Code 26.179®. (1996). 11597 Section 26.179 allows land- general delegated the land owners to choose between two ob- The to jectives powers. water owners Water formulating quality legislative their are (1) power. plans: quality regulation legislative maintain levels of background to (2) The 925 S.W.2d at 634. quality waterways; cap- Barshop, to conservation, develop preservation, the inches of rain- and ture and retain first 1.5 876 regulations is nicipal legislative pow

ment the natural are also a of State’s resources duties, Legisla and and to public rights By allowing er. decide landowners charged passing pro ture laws to regulations are enforce municipal which rights. tect See Tex. Const. public these al property, able on their section 26.179 XVI, (stating § art. 59 the conserva to private lows ascertain preservation tion of Texas’ natural and existing municipal upon conditions duties”); “public rights and resources operate. laws will Water Code Am., Sipriano Spring v. Great Waters § general premise, As a munici of 26.179®. Inc., 75, (Tex.1999)(Hecht, J., 1 S.W.3d 81 palities quality reg enact water and other (“The have concurring) people Texas ulations to further the interest. See public ... given Legislature 26.177(b) (providing Tex. Water Code laws duty ‘pass but all such that, 26.179, subject water pollu to section appropriate’ the conserva programs may tion control and abatement tion, development, preservation and ETJ which in city’s include areas within resources.”); Barshop, natural 925 State’s city’s judgment should be included (“[T]he has the re S.W.2d at 623 State objectives); city’s achieve the sponsibility under the Texas Constitution (stating Tex. Loc. Gov’t Code preserve and conserve water resources purpose that the of subdivision Texans.”); Maple benefit of all health, morals, safety, promote is “to Run Austin Mun. Util. Dist. v. Mona general municipality welfare of the and (Tex.1996) 941, 947 ghan, 931 S.W.2d safe, orderly, develop and healthful (“[A]ll protect Texans an interest in have municipality”); City ment of Round resources”). ing natural this State’s 300, (Tex. Smith, v. 302 Rock S.W.2d 1985) platting regulation pro (stating Legislature generally delegated has development of the orderly motes commu quality regulation state water construction); 5.012; nity §§ safe subdivision See TNRCC. Code WateR (Tex. 605, 26.0136, 26.011, 26.023, 26.036, Lacy Hoff, In S.W.2d 26.127. 1982, addition, writ ref d given App. [14th Dist.] it has cities the — Houston n.r.e.) (stating regulation within their subdivision regulate ensures, things, jurisdictions. among adequate and extraterritorial limits 26.177; Tex. Loo. and fire alleys, police protec See Tex. WateR Code streets conditions); tion, has sanitary Prop 401.002. LJD Gov’t Greenville, erties, empowered City also conservation and reclama- Inc. v. regulate quality. tion (Tex.App. districts — Dallas See, denied) §§ 36.001-374 (stating municipalities writ e.g.,Tex. WateR Code districts) §§ (groundwater 51.001-875 nuisances to prescribe public and abate districts). (water improvement control health, comfort wel protect safety, fact, public). regula such fare Here, provided gen- substantially related must be tions objectives in section eral water health, safety, or welfare be valid. 26.179, land- has empowered but v. Turtle Rock City College Station fill in decide owners to the details —to (Tex.1984); see Corp., 680 S.W.2d 26.179 to how to whether and FM Co. v. Properties Operating also implement to make rules to their property, th (5 Cir.1996); Austin, 167, 174 93 F.3d 26.179, ascertain conditions and to of Sunnyvale, 964 Mayhew Town may operate. upon which the statute of (Tex.1998); 922, Prop LJD 933-34 Boll legislative powers. See These erties, Inc., 207. 753 S.W.2d at 466-67; Weevil, also 952 S.W.2d at see at Higginbotham, 87. 143 S.W.2d Therefore, delegates leg- section 26.179 power private landowners be- exempt islative power landowners’ gives legislative them duties of mu cause from the enforcement themselves 877 comprehensive powers, city may effecting the exercise of which ad- be a zon interests, the versely public including ing plan pursuit good, affect of common the owner discretion to constitutionally-protected public inter- had the absolute rezoning est in water decide that no shall ever occur quality. selfishly arbitrarily and could frus holding, Consistent a with our number Brodner, See 51 City’s plan. trate of authorizing courts have held laws 618, And, Ill.Dec. 420 N.E.2d 1178. private property owners to veto or exempt Timber, Bayside the court held that a applicable reg themselves from otherwise law allowing oper state timber owners and regulate property ulations or to their own industry promulgate ators to rules was an legislative are delegations power. of See delegation. Bayside unconstitutional County v. Fleet Indus. Park of Fairfax Timber, CaLRptr. 97 at 436-37. The court L.P., 426, 669, 242 410 Va. S.E.2d 673 noted industry’s detrimental effects on (1991); Elgin, Brodner v. 96 Ill. of environment, interest in the public 224, 618, App.3d 61 420 Ill.Dec. N.E.2d environment, and lack of standards 1176, (1981); Bayside 1178 Timber v.Co. safeguards in the to protect statute 1, Board 20 Supervisors, Cal.App.3d 97 Timber, public Bayside interest. See 431, (1971); Cal.Rptr. 436-38 see also Cal.Rptr. at 434-37. Comm’n, Stewart v. Utah Pub. Serv. (Utah 759, 775-77, 1994) P.2d (holding Finally, delegation we note that the here allowing that a a privately-owned statute presents the very concerns Court utility to veto an incentive regulation rate Weevil, identified in Boll Weevil. See Boll plan adopted by public a commission un 952 S.W.2d at In developing constitutionally legislative delegated implementing plan, to a private Revne party); v. Trade exercising authority landowners are over Comm’n, 113 Utah 192 P.2d quality, public interest. ex- (1948)(holding that a statute allowing a empting the enforcement themselves from group representing seventy percent of the municipal regulations, their choice of barbers in a city price to initiate a sched they may public affect interest on ule to submit to the State Barber Board regulations whose behalf those were enact- for approval was an Yet, unconstitutional dele ed. are not the landowners elected gation). by people, appointed public offi- entity, govern- cial or employed In County Fairfax, Virginia Su And, pecuniary ment. their interest preme Court held that state law that developing profit may their land to realize required county supervisors get unani repugnant inconsistent with or mous consent from all affected landowners public Accordingly, we interest. conclude before enacting zoning regulations certain delegates that section legislative was an delegation unconstitutional of legis landowners. power. County lative Fairfax, S.E.2d at 670. The court noted B. Dissenting Opinions county powerless zoning was to enact reg reasonably ulations even if it determined ofMost Justice Owen’s dissent is rhetoric, that the necessary nothing inflammatory were for the than more County and thus Fairfax, response. welfare. See merits no We note Brodner, Similarly, S.E.2d at 673. legal arguments the two Justice city the court held that a ordinance that Owen both does make are based on a First, required an consent flawed premise. argues owner’s before a she because, could rezone his was an delegation unconsti section 26.179 is not a statute, legislative enacting tutional power. Brodner, merely regulatory power 51 Ill.Dec. 420 N.E.2d at took back that, that although gave

1178. The court noted the the to munici- itself 878 Second, she that case whether section 26.179 of the Wa-

palities. argues is delegation. it ter is a constitutional delegation 26.179 cannot be because merely private rights to property restores Next, in ar- as the dissent Boll Weevil But section 26.179 does not landowners. have gued, argues that we Justice Abbott Instead, just as we deregulate. have ex- applied the of review improperly standard gives private landown- plained, the statute 900; 22 at challenges. facial S.W.3d power and to public regulatory ers duties Weevil, J., (Cornyn, Boll at 492 S.W.2d achieve those duties. because the Just re- concurring dissenting). Again, we deregulated have prop- could ject argument here for same rea- this the erty regulated in in ETJs rejected sons it in Boll Be- we Weevil. giving does not that ETJs itself mean the reviewing cause we are statute under powers these duties and to the landowners challenge, facial section 26.179’s constitu- delegation. contrary, cannot be a theOn tionality depends on whether the statute legislative is the dele- this aof definition written, as it in operates as rather than gation. legislative power includes Again, factors. practice, passes the Boll Weevil law, the of the provide to the details Proctor, 735; at Boll S.W.2d Wee- ap- rules and promulgate vil, Further, at 472-74. our 952 S.W.2d law, the ply ascertain conditions constitutionality analysis statute’s upon existing may operate. laws rely does not on individual outcomes Weevil, 466-67; at Boll S.W.2d steps governmental in the re- individual Higginbotham, 143 at 87. S.W.2d When statutory view but on the scheme process, Legislature gave the these Weevil, as a whole. See Boll 952 S.W.2d protect obligation landowners with Thus, at fact that the TNRCC delegated legislative quality, pow- actually quality plans denied two water er them. To extent Justice does not render the statute constitutional. legal makes additional ar- Owen’s dissent is statutory Because overall scheme arguments mirror Justice guments, these unconstitutional, always itself statute in Abbott’s and we consider them our re- of operates unconstitutionally, regardless sponse Justice Abbott’s dissent. Inter- approves or denies whether TNRCC estingly, part I of Abbott’s dissent Justice Indeed, as particular plan. we explain joined on the he heavily relies dissent factors, our Boll Weevil discussion Weevil, Boll Weevil. See Boll 952 S.W.2d deny despite the TNRCC’s J., concurring and (Cornyn, at 491 dissent- gov- quality plans, meaningful is no there First, claims that the ing). Justice Abbott ac- ernmental of the landowners’ review sky falling holding because our tions, inadequate representation there is is unconstitutional. section 26.179 actions, landowners’ those affected 898-99; Weevil, at see Boll interests pecuniary landowners have J., (Cornyn, concurring S.W.2d at 491-92 function, conflict their But case not dissenting). this delegation is broad duration vouchers, prisons, or about school sum, application of extent. that the Boll private property rights. even Cf. cases, can, in some unconstitutional statute (“[W]e Weevil, at express 952 S.W.2d reach the same as application result opinion as to whether no make the statute does not constitutional statutory cited dissent- enactments statute constitutional. unconstitutional pass ing justices would would con- Thus, constitutionality in no way muster. does stitutional Before we consider fear, justices respond opinion, dissenting delegation depth, we our no there is 'ultimately heretofore estab- Abbott’s claim threaten the Justice First, Abbott Justice quasi-governmental entities all. lished role of ”). dele does not argues that section 26.179 Texas law.’ The issue under

879 be enforced. Fur- gate legislative power merely because it and therefore cannot ther, opt municipal allows landowners out of ultimately that a court can decide regulations and into section 26.179’s water disputes delegated exercise of a about the quality protection scheme. On the con mean, power argues, cannot dissent trary, section more than 26.179 does that. delegation. that there is no Courts rou- simply Section 26.179 allow does not land See, tinely delegates’ decisions. review reg owners to choose between two distinct e.g., Quick, (holding 7 at 119 that a S.W.3d ulatory schemes. Unlike statutes invalid, arbitrary, ordinance was not cites, the cases the dissent section 26.179 inefficient, unreasonable, or ineffective part allows the to create landowners attempt quality); its to control water regulatory they scheme choose. that judicial (providing Gov’t Code 26.179(g); Helver Tex. WateR Code cf. decisions). review of agency state ing 463, Carp., Lemer Stores 314 U.S. that, argues Justice unlike Abbott also (1941) 62 S.Ct. L.Ed. 482 Weevil, (statute Boll landown- allowing taxpayers to choose be ers power do not have authoritative over bases); tween predefined distinct and tax private property others. Boll City Chicago, Thomas Cusack Co. v. Cf. 526, 531, Weevil, agree. U.S. 61 L.Ed. 472 at 471. S.Ct. S.W.2d We (1917) (statute allowing adjoining landown But disagree we means that there prohibition ers to waive a zoning against is no delegation legislative power here. neighbor’s billboards on their property). Weevil, In Boll provid- the statute at issue ed for the creation of foundation The landowners create water that, subject approval to referendum and land plan, thereby use exempting operated affected growers, cotton boll wee- themselves from the enforcement of mu- vil eradication programs assessed cot- nicipal regulations are inconsistent ton growers programs’ for the costs. See with or plans, inconvenient those Weevil, Boll thus cannot be on their 952 S.W.2d at 456-57. The property. enforced 26.179(i). See Tex. WateR Code foundation impose penalties upon There- could fore, although the giv- landowners are not growers payment for the late of assess- power en the directly suspend municipal private property ments and could enter laws, the do ascertain condi- permission without the owner’s upon tions which those laws will be en- statute, purpose under including Again, forced. a legislative power. this is monitoring, treatment destruction of See Higginbotham, at 87. Jus- Weevil, crops. See Boll 952 S.W.2d at tice argues Abbott the Legislature 457-58. could not have practically specified which Here, regulate the landowners municipal powers would be inconsistent municipal regula- and decide which with land use plans. This only tions are enforceable on their own may be point. true. But he misses the property and of their succes- landowners have the to create sors interests. See simply by those drawing up inconsistencies WateR Code (h). 26.179(d), Nevertheless, the land- plans that comply municipal do not with owners’ powers quality protec- over water reason, regulations. For the same Justice exempt tion and their themselves argument Abbott’s there is no delega- municipal from the enforcement ordi- tion because the will ultimately courts de- adversely nances could affect the disputes particular cide about whether interest, specifically, and more the inter- municipal regulation be enforced in can ests of zone is downstream water users and the equally misguided. issue Therefore, a court dispute neighbors. could review in such a landowners’ landowners, whether the foundation in regulation issue is fact like the Boll Weevil, plans charged legislative inconsistent with the landowner’s duties to powers, delegation legislative powers which could and exercise of tional public specific third private affect interest and landowners.

parties. 1. Review Governmental

Next, contends Justice Abbott delega classifying 26.179 as a that section heavily against first factor weighs This every pri tion renders that allows statute because, delegation. significant This is meeting a statu vate citizens discretion in said, relatively as we have this factor is tory disagree. standard a delegation. We pri- in to important analyzing delegations entity an is delegation only A occurs when parties. vate interested duty to given public and the discretion with 26.179 vests the TNRCC Section to policy, rules public promulgate set limited review over the landowners’ policy, achieve that or ascertain conditions and their quality protection plans water apply. which will upon existing laws quality. in protecting effectiveness water Weevil, 466-67; at Boll 952 S.W.2d Further, oth- neither TNRCC nor By en Higginbotham, 143 at 87. power governmental agency er authority trusting private landowners with about review the landowners’ decisions quality protection over water and regulations municipal will be en- which section property, their their property. forceable on public duties 26.179 entrusts them with gives and them broad discretion to decide First, agree the Landowners we with whether, how, what extent and to 26.179, section and dissent under achieve those duties. subject remain to pre-existing quality The remainder Abbott’s future regulations, Justice state water not a argument why necessary about section 26.179 is quality regulations state water standards, relies the TNRCC’s delegation heavily on and the comply with federal reviewing quality plans in and regula- role water TNRCC’s enforce those general water in regulating quality implementing Zones tions. dele- implies that because section 26.179 require- that meet 26.179’s plans TNRCC, it gates power to the does satisfy all other presumed ments are But, power to delegate the landowners. requirements local for water state and Weevil, a stat- explained we Boll when protection. Tex. WateR Code pri- delegates 26.179(k). ute authoritative Nevertheless, parties, private dele- vate interested it is in the zones requires development Weevil, at Boll 952 S.W.2d gation. See all and TNRCC comply with state laws conjunction delegation 471. That regulating rules entity, with a the zone date. See designation effect on ac- delegate’s government 26.179(k)(l). reviews These Code Tex. WateR assessing may tions be relevant existing licensing, may permitting, include but it constitutionality delegation, designed to response programs spill private mean not a does not storage, transporta- prevent pollution Weevil, 952 S.W.2d delegation. waste, See Boll tion, sub- disposal hazardous stances, Reg. 21 Tex. and wastewater. See (1996). regu- Specifically, TNRCC Delegation C. Section 26.179’s on- Aquifer, lations related to Edwards is Unconstitutional treatment, well site wastewater systems, underground sewerage legisla- drilling, delegates Because section 26.179 tanks, landowners, effluent aboveground storage de- we tive limitations, may protection and watershed constitutionality by applying termine its Reg. zones. 21 Tex. con- eight-factor test. We Boll Weevil’s (1996). Further, subsection is an unconstitu- 11601-02 clude that section 26.179 26.179(m) provides 26.179(g). (g) that the TNRCC Subsection further require and enforce quali- provides quality plans additional that water ty protection to comply plans measures amendments to are effective immedi- mandatory quality require- federal water ately upon apply during recordation and 26.179(m). ments. See during appeal TNRCC review and even WateR Code of a denial of the or amend- TNRCC But section 26.179 curbs the TNRCC’s § ment. 26.179(g). See Tex. Water Code review enforcement over sec- Thus, 1,000 owning acres or requirements tion 26.179’s and the land- more can begin develop imple- land and owners’ discretion in them in meeting ment quality plans water even before the several important ways. Section 26.179 begins TNRCC its review. See Tex. requires the TNRCC to review water (1996) (“[Construction Reg. 11607 is al- quality plans and their effectiveness by provisions lowed of the ... statute achieving objectives section 26.179’s upon proper designation of the zone and maintaining background levels of water quality plan submittal of the water for the quality or retaining inches of rainfall. review.”). zone to the executive director for 1,000 owning Landowners 500 to acres must secure pre-approval of their contrary zone This is to the rule in similar designations from the before regulatory TNRCC schemes. See Tex. Water Code 26.027(c) (“A their zone designations § are recorded person may not commence county deed records and become ef- facility construction of a [water] treatment 26.179(d). § fective. See Tex. WateR Code until the commission per- has issued a designations Zone mit.”); include a quality § water 11.121(“Except Tex Water Code zone, plan for the a description pro- code, provided in ... person no posed quality may facilities and infra- ... begin construction any work structure, general and a description designed storage, for the taking, or diver- proposed land uses for the zone. See sion of water without obtaining per- first 26.179(e). § commission.”); Although mit from the 30 Tex. Admin. Tex. WateR Code explicit (“[T]he statute is not § about the scope Code owner existing of an review, site, TNRCC’s has proposed TNRCC or such aas residential or reasonably interpreted pre-approval commercial ... development, propos- who provision require ap- that the TNRCC es new or additional regulated activities prove plans and amend- chapter, under this must file for and re- they ments before become effective ceive approv- [TNRCC] executive director 1,000 zones of 500 to acres. appropriate See al of all applications prior to Tex. 26.179(d), (e), § (g); see also commencement of construction of new or Water Code 216.3(a). 30 Tex. Admin. activities”); There- additional regulated 30 Tex. Code fore, 213.4(a)(1) (“No disapprove TNRCC cannot a Admin. person Code designation zone any for reason commence the construction of other than the failure of the zone’s regulated activity until an Aqui- Edwards quality plan to meet protection section 26.179’s re- fer plan or modifications to the quirements. plan ... has been approved reviewed and director.”). by the [TNRCC] executive 1,000

Landowners with acres or more need not seek approval TNRCC until after approve plan TNRCC must or quality plans their water plan amendments amendment to a unless the TNRCC already in effect. See implementing finds that it will not reason- Water § 26.179(g). Section 26.179(g) pro- ably maintain background levels of water Code that, zones, vides larger these capture and retain the first 1.5 quality plans need not be submitted to the inches of rainfall. See Tex. Water Code they TNRCC until after are recorded in 26.179(g). The statute is silent about county deed records. plan the effect of a denial of a TNRCC Water TNRCC, however,

amendment. The the landowner must summarize the moni- results, reasonably interpreted pro- toring statute to the best manage- describe quality plan zone, vide that a denied water is no practices being ment used longer ap- effective unless the landowner annually them to the in a submit TNRCC peals 30 Tex. Admin. the denial. See report technical for review. See Tex. Wa- 216.4(1). 216.8(e)(6), §§ al- statute 26.179(b). If the reports ter Code appeal lows a landowner to the TNRCC’s background reveal levels were denial plan of a or amendment to the year, during previous maintained courts, and, contrary general rule modify landowner must the water decisions, judicial agency review of development but plan only phas- for future denied or amendment is effective in the es zone and the extent during applies appellate to the zone practical. reasonably feasible process. Tex. WateR Code 26.179(b)(1). § Tex. Water Code (the 26.177(d) § § 26.179(g); TNRCC’s cf. operational modification requires statute ruling pollution on water abatement in practices existing and maintenance regulation in effect pur- remains for all phases, only to the extent rea- again, but Al- poses during appeal ruling). sonably practical. See Tex. feasible though does not limit expressly the statute 26.179(b)(2). § Water Code particular this provision’s application 1,000 more, landowners with acres or we the landowners’ TNRCC reviews interpret provision they and determines whether modifications these landowners and larger not to land- modify plans practices the extent 1,000 is owners with 500 to acres. This statute, is, required under the group’s plans because the latter reasonably practical. extent feasible are not until amendments effective 26.179(g) § (provid- See Tex. Water Code them and can- approves TNRCC therefore all ing the TNRCC reviews amend- development not zone dur- apply to quality plans). ments to But as is water ing appeal of a TNRCC denial. Also for true TNRCC review of initial water atypical procedures, of review for both 1,000 quality plans, owning for landowners zones, large small and TNRCC has more, acres or and amend- modifications proof appeal. burden of on See Tex. Wa- immediately to plans ments are effective § 26.179(g); San ter Code cf. upon recordation and remain effective dur- Comm’n, Antonio v. Texas Water appeal ing and an of a TNRCC review (the (Tex.1966) ap- party TNRCC denial. See Tex. Water Code order pealing the TNRCC’s has bur- Further, § all 26.179(g). for zones of not den show evidence does sizes, proof has the burden of TNRCC order). reasonably support of a appeal of a denial modification. approves plan, Once the TNRCC 26.179(g). See Tex. Code Water purporting statute requires Therefore, modifica- regardless quali- levels of background maintain necessary tions to achieve section actually ty quality. See Tex. Wa- monitor objectives, any 26.179’s is re- modification 26.179(b). monitoring But is ter Code reasonably it is quired only to extent phase each de- not until after required Further, plan mod- practical. feasible and then, velopment completed, and monitor- is only required ifications for future three ing only required years. is See in the It 26.179(b). zone. Further, phases development Tex. Water de- if landowner does not follows that requirement development there is no not the landowner need Therefore, velop phases, monitoring occur in phases. modify insufficient grossly even a might required until a is com- not be zone there are future plan, no years. could because pletely developed, which take requires plan statute phases for which the During three-year monitoring period, modification. Reg. plain language prohibits Tex. 11611 the statute’s (1996). Further, monitoring monitoring because is re- requiring TNRCC from quired only development after complete, monitoring of water in these zones. 26.179(b). phase development, any, after if Not WateR Code complete, surprisingly, extensive modifications of exist- all but one of the zones filed ing operational and practices, maintenance with the TNRCC elected to retain the first even if needed to achieve section 26.179’s rainfall developed 1.5 inches of areas quality objectives, maintaining background not be rea- instead of levels sonably practical, feasible and quality. Reg. conse- of water (1996). And, quently required. develop- 1,000

ment continues zones of acres or Finally, very limited TNRCC during more TNRCC review of modifica- power over the decision to designate tions, necessary likely modifications be- zone. The does pre-approv- TNRCC have come less practical. feasible and al over zone designations of 500 to 1,000 acres. But the statute does not al- The TNRCC has even less en low the de-designate any TNRCC to zone forcement purporting zones noncompliance with section 26.179 or retain the first 1.5 inches of rainfall from applicable regulations. Similarly, that, developed areas. The statute states Weevil, although Boll the Commissioner of zones, for these quality “[w]ater monitor Agriculture could dissolve the foundation ing required.” shall not be Tex. WateR once the Commissioner determined the 26.179(b). Moreover, § all of the Code had pur- foundation fulfilled its eradication language statute’s about monitoring and pose inoperative or had become or aban- submitting reports annual falls under the doned, the Commissioner had no 26.179(b), first paragraph subsection noncompliance dissolve the foundation for expressly refers to zones maintain with applicable statutory requirements. ing background water quality levels. See Weevil, See Boll 952 S.W.2d at 473. This 26.179(b). § Neverthe Tex. WateR Code weighed heavily fact against delega- the less, the TNRCC promulgated rales Weevil, tion. Boll See 952 S.W.2d at 473. requiring retaining zones rainfall to main Here, the has no authority TNRCC what- them, tain certain records and submit de-designate soever to dissolve or a zone along with an assessment of the water noncompliance with section 26.179 or quality plan’s meeting success in the quality other protection water laws and TNRCC’s water quality requirements. regulations. This fact similarly weighs 216.8(a)(2), § See 30 Tex. Admin. Code against the here. (b). (a)(3), To the extent the TNRCC’s require rales monitoring that, of water quality We conclude while the landowners’ zones, in these they contrary are subject to the under section 26.179 are plain statute’s language prohibiting review, some TNRCC the review is not TNRCC from requiring monitoring. such meaningful as the first requires. factor Indeed, Instead, pro Landowners’ comments to the statute allows a landowner posed 1,000 TNRCC rales note that the with acres or more to develop before reporting TNRCC’s requirements for TNRCC and approval during appeal retaining Further, zones rainfall were “excessive a denial. TNRCC it allows land- unnecessary.” and Reg. Tex. 11613 owners of zones of all sizes to lock into an (1996). Although we defer quality to administra insufficient water protection plan interpretations tive legislation, we do so by developing plan any under the before they interpreta monitoring when are reasonable plan’s for the effectiveness 311.023(6); And, § tions. See Tex. protecting quality required. water Gov’t Code Comm’n, Public larger Util. 883 S.W.2d at 196. as development continues zones Contrary interpretation, to the during appellate TNRCC’s TNRCC review and the

process, necessary requires become public generally. modifications The statute less less feasible and are practical, notice of give zone likely less required. therefore designations municipality within ETJ a zone and the whose is located coun- quality While the landowners’ water ty in which is located. See review, plans subject to some TNRCC 26.179(f). But section Tex. Water Code authority landowners’ to decide which prohibits from requir- the TNRCC on municipal can be enforced on a water ing hearing quality their property subject any is not plan. 26.179(g). Water Code zone, a By designating TNRCC review. contrary general This to the TNRCC’s exempts landowner himself from en- public hearings to hold on the ad- municipal relating forcement of ordinances chapter ministration Water use, abatement, pollution land nuisance Code, duty and the to hold pub- TNRCC’s control, quality, require- subdivision hearings lic on the TNRCC’s ments, any other environ- municipal standards, permit applica- discharge regulation mental is “inconsistent tions, regulating and on orders Ed- plan land use the water Aquifer. wards plan any limit, way modify, Tex. Water or which Code 26.020, .024, .028,. §§ .046. impair ability to implement oper- ate quality plan the water and the land use expressly provides The statute landown- plan within the zone as filed.” Water TNRCC denial right appeal ers While section Code 26.179®. plan competent court of to a oversight some provide does TNRCC jurisdiction. Tex. WateR quality protection it does not plans, But 26.179(g). the statute does con- give governmen- TNRCC any party right appeal fer TNRCC agency tal authority to review designation. approval or zone power to themselves exempt landowners’ generally 5.351 of the Water Code Section choice of the enforcement of their a persons affected to seek court allows course, city powers. regulations and Of aside, suspend- setting modifying or order disputes eventually courts could decide decision, order, ruling, or other act of ing a municipal ordi- about whether certain the TNRCC. Tex. WateR Code quality nances are inconsistent with water 5.351(a). Nevertheless, plain § a reading But, plans. discussed land use 26.179 to conclude that of section leads us earlier, the initial the landowner makes Legislature intend to confer a did not which municipal regulations decision about appeal any to act under section right can without property be enforced its of a except denial plan. TNRCC any governmental oversight. confers a 26.179(g) expressly That under Because landowners’ of a but is right appeal to the denial subject meaning- section 26.179 are not to allowing ap- of similar language devoid review, ful first factor governmental desig- its or zone peal plan, approval, of a heavily against delegation. weighs v. Ter- significant. nation is See Cameron Garrett, Inc., rell & 618 S.W.2d Representation Persons Affected (Tex.1981) every word or (holding adequate does Section 26.179 not afford phrase excluded from a statute must be representation by to those affected to excluded a presumed have been Therefore, this fac- landowners’ actions. given This is true purpose). especially tor weighs against delegation. also 26.177(d), which language of section ex- appeal “[a]ny to previously, pressly right As discussed the landowners’ confers order, ruling, creating person wa- affected deci- implementing actions ordinance, resolution, sion, adversely affect or plans program, ter could quality users, pollu- to water relating other act of neighbors, downstream water them- individuals other than particular and abatement.” Tex. WateR tion control 26.177(d). 26.177(d) shows in interest. Section selves and their successors 26.179(h) (“The provide that the knows how to See Tex. WateR Code by a right appeal persons affected for a zone shall be a quality plan land.”). quality plan government action running with the covenant Yet, relating plan. to a Weevil, weighed factor In Boll per- not provide right chose such delegation because of the foun- against the plans sons affected directly apply the law dation’s approval plans. TNRCC Weevil, 952 S.W.2d parties. third See Boll addition, the landowners alone decide foundation had the at 474. The en- municipal regulations cannot be and to impose penalties payment for late forced in their zones. The statute re- private property any purpose enter quires give applicable statute, treatment, including under municipalities counties and notice of their crops. and destruction of monitoring, zone which includes a de- designations, Weevil, Here, the Boll 952 S.W.2d at 458. scription proposed land and a uses wa- power to the law landowners have no quality plan. ter WateR Code parties to third other than their succes- (f). 26.179(e), provides This constructive 26.179(h). sors. See Water Code notice of the land use and water Therefore, we conclude that this factor plans to affected of the public. members weighs delegation. favor of the But the statute does require not the land- notify anyone, including neigh- owners to 4.Pecuniary Interest boring property owners or downstream Public Function users, regula- about municipal earlier, weighs we stated this factor As tions that cannot be their enforced on heavily delegations interested they because with the interfere parties. weighs We conclude that it heavi- And, land use or water plan. al- ly against here. though persons affected their com- retain action, under section 26.179 obvi- Landowners mon law causes of the statute does ously pecuniary have a interest provide any right of review of the conflict with their function. The landowners’ decisions about their land use Landowners concede that those who des- plans to affected individu- ignate property as a zone have an their municipality. als or to the property their val- protecting interest provides inadequate Because the statute argue, though, that ues. The Landowners representation persons affected they public do not have a function. As we actions, delegates’ weighs this factor already explained, section 26.179 al- have against delegation. regulate quality lows landowners to municipal regulations and to decide which Apply 3.Power to the Law to property. enforced their cannot be on Particular Individuals public in- powers Because these affect weighs This factor in favor the dele- terest, public do have a the landowners gation. power The have the to landowners Undeniably, pe- function. the landowners’ them quality plans apply create and cuniary maximizing profit interest mu- to their and to decide which with may costs conflict this minimizing nicipal regulations are enforceable on their public function. property. Again, powers may these affect individuals, particular neighboring such as Authority 5.Criminal users. landowners and downstream water weighs delega- in the give But section 26.179 does not the land- The fifth factor Although section 26.179 al- power apply owners the to the law to tion’s favor. exempt lows landowners to ability implement themselves landowners’ those from municipal regulations See plans for property. Tex. Water § enforced with penalties, otherwise criminal Code 26.179®.

it empower does not landowners to define The delegation to the landowners is not impose criminal acts or criminal sanctions. narrow in The duration either. statute expressly that the water provides quality Duration, Extent, Subject 6. is a with the plan running covenant land. Delegation Matter of 26.179(h). See § A zone Tex. WateR Code weighs against factor sixth the dele- power regulate and the coordinate wa gation. delegation’s subject matter is ter exempt property mu fairly narrow. The statute delegates nicipal city laws exists until a annexes the govern landowners 26.179(i). § zone. See Tex. Water Code and land use their And section prohibits annexation own property and that of their successors years until 20 designation after zone And, interest. landowners are still percent until 90 of the zone’s facilities and subject to state and existing TNRCC wa- are complete, infrastructure whichever oc ter regu- additional curs first. Tex. Water Code necessary comply lations 26.179(i). federal Thus, statute, § under if a standards. (i), does not annex under subsection the zone and the landowners’ But of the fairly the extent the zone This is indefinitely. contrary last broad. Landowners have regulatory to the time found in other limits create, implement, and enforce their own § schemes. Tex. Code Water See Tex. Water Code quality plans. (“In permit, each shall pre the commission 26.179(b), (d), (f), (g). plans These could issued, scribe conditions on which adversely affect the interest and the including permit.”); duration neighbors and interests of downstream wa- 213.4(h) (“[AJpproval Admin. Code Yet, plans ter devel- users. these Aquifer protection plan Edwards will 1,000 opment in zones with or more acres expire two after the date of initial years before approval, TNRCC even after issuance, expiration prior unless if the appeal TNRCC denial date, substantial construction related to denial. Water commenced.”). approved Further, 26.179(g). plans those Therefore, weighs against factor also quality monitoring which water is re- delegation. quired, monitoring if that the even reveals plans achieving not section 26.179’s Qualifications Training objectives, need not plans be modified require if except phases development, in future Section 26.179 does landown- 26.179(b). See Tex. WateR Code any. possess qualifications any special ers to in water required only training planning, quality Modifications are to the ex- land use health, practical. safety, reasonably management, tent feasible and or and 26.179(b). Therefore, Therefore, § welfare ordinari- management. Tex. Water Code ly, weigh against in discussion first this factor would we noted our Nevertheless, factor, delegation. the statute the landowners have broad discre- does registered actually complying require pro- tion in landowners to hire with objectives. fessional to review their water quality engineers Land- 26.179’s water plans and amendments. Accord- exempt quality have the to owners also does ingly, although the statute not re- their from enforcement qualifi- quire that are to have relevant any city regulations delegate inconsistent plan training, requires delegate with use cations or it quality their water and land limit, impair professional to hire a who does. Because plan modify, or that could inches of rainfall Retaining the first 1.5 obligation engineers professional have self-interest, specif- developed adequately re- areas is employers’ their beyond likely ic, determining their review makes more the standards on quiring fairly will achieve section maintaining background landowners levels 26.179(a), objectives than quality § 26.179’s water specific. See Tex. Water Code landowners them- requiring (b). Further, would requires that the statute expertise. engineering selves to have with all comply in the zones development quality and TNRCC water existing state requires the statute Specifically, regula- and additional state professional engineer certify that a land- mandatory with designed comply tions one of quality plan owner’s water achieves quality standards. See federal Tex. standards, 26.179’s either maintain- 26.179(k). § Water Code ing background levels of water retaining rainfall. Tex. Code WateR guid- little provides But section 26.179 Further, § 26.179(g). purporting zones background do if ance on what to background to maintain levels of water are not maintained. The quality levels background if data on levels are quality, simply directs the landowner statute unavailable, engineer must calculate modify phases for future of devel- main- certify background levels to main- opment operational and current 26.179(b). tain. See Tex. Water Code reasonably “to the extent practices tenance And, must professional engineer ac- practical.” feasible and Tex. Water Code knowledge that the landowner’s subdivi- 26.179(b). There is no time limit for plat sion with the complies submitting modifications to the proposed 26.179(j)(2). plan. See Water Code TNRCC, 1,000 and for landowners with Therefore, provides the statute a check on more, acres or modifications in formulating the landowner’s discretion during zone activities TNRCC review and quality plan plat and a subdivision during appeal even of a TNRCC denial comply plan. with that of a modification. Water contrast, In engineer neither the nor Further, develop- as more 26.179(g). any other party qualifications occurs, become ment needed modifications training role in the landowner’s practical. less feasible and This standard municipal regula- decisions about which guide is thus insufficient to landowners tions the landowner’s water plans comply with sec- modifying their plans comply land use will with and are or the TNRCC requirements tion 26.179’s property. therefore enforceable on its plans. reviewing modifications Therefore, we conclude that this seventh Proctor, held that a dele- weighs against factor neither for nor Court authority private entities to delegation. gation of arbitrators” “qualified select neutral Sufficiency Legislative Standards appeals pro- civil commission hear service Delegates to Guide Proctor, guidance. adequate vided case, however, In that S.W.2d at 738. weighs This last factor neither for nor uniquely qualifications 26.179 assessment of was against delegation. Section and the fairly statutory delegate’s expertise, stan- within the provides detailed sufficiently specific to formulating term “neutral” was guide dards to Moreover, intent. quality plans. legislative initial water Land- reflect their Proctor, nar- authority delegated was given two standards for owners broad arbi- potential forward names of quality plans their water back- row—to —maintain “quali- criteria for selection. The ground levels of water or retain the trators were well-suited developed rainfall fied” and “neutral” first 1.5 inches of from 26.179(a). contrasts purpose. narrow This areas. Tex. Water here, starkly delegation in which V. CONCLUSION “reasonably the elastic standards feasible We hold that section 26.179 of the Texas practical” provide and guidance little delega- Water Code is an unconstitutional the landowners in their exercising relative- legislative power private tion of land- ly broad authority. owners. alsoWe hold that the trial court did not in denying abuse its discretion Similarly, section 26.179 does not pro- attorney’s Landowners’ claims for fees. vide guide sufficient standards to the land- we trial Accordingly, affirm the court’s regula- owners in deciding municipal judgment. property. tions can be enforced on their can Landowners craft a land use or water dissenting Justice OWEN filed a quality plan regard municipal without opinion, which Justice HECHT and regulations. Those that are joined. Justice ABBOTT plan “inconsistent with the land use Justice filed a dissenting ABBOTT quality plan the water or which in any way opinion, in which Justice HECHT and limit, im- modify, impair ability joined. Justice OWEN plement operate the water plan land use within the zone OWEN, joined by Justice Justice filed,” are then not enforceable on the ABBOTT, HECHT and Justice dissenting. property. landowner’s Tex. Water Code strongly I dissent from what the Court 26.179(i) added). (emphasis This seems wrought today. importance has exempt to allow the landowners to them- private property rights this case to and to municipal selves from the enforcement of separation judi- between laws long reason as as it is some- legislative government cial and branches of how related to their water and land Legislature ~ cannot be overstated. The plans. use Constitution, by the Texas forbidden weighs This last factor nor says, allowing neither for Court owners against delegation. they But the Boll Wee- to make decisions about how use and against develop vil factors as a whole their own land. weigh While Consti- Therefore, certainly tution constitutionality delegation. permits Legislature enact that preserve we conclude that laws and conserve the section 26.179 of the Wa- resources, nothing State’s natural there is ter Code is an unconstitutional in the that requires Leg- Constitution legislative power landowners. any par- islature to exercise that We need not consider the additional ticular manner. How grounds summary the cross-motions for regulate Legisla- chooses to is left to the Doe, judgment. See at 473. S.W.2d ture, not this Court. Our Constitution that in plainly preserving states con- IV. ATTORNEY’S FEES resources, Legis- our natural “the serving We conclude that the trial court did not pass lature shall all such laws as denying abuse its discretion in the Land- Const, thereto.” art. appropriate claim for attorney’s 59(a). owners’ fees. Under XVI, seeking to up- Instead of Declaratory Judgment the Texas Uniform the laws that has hold Act, the trial court has discretion in award- end, the passed toward that Court ing attorney’s equitable fees “as are rarely nondelegation used upon seized just.” PRAC. & Rem.Code authority claim doctrine to constitutional Civ. 37.009; see also Barshop, unprecedented for an restriction judgment affirm the trial court’s un- Legislature’s power equally We and an denying precedented private proper- the Landowners’ claims for attor- restriction on ney’s ty rights. fees. amount a considerable spends pro- raises Court holding today

The Court’s I in- characterizing provisions. Does these disturbing questions. foundly time regulates Legislature in way that readers A so Appendix in clude them in rural property quality private water pro- what Code see for themselves can legisla- unconstitutionally delegate areas say. visions owners? private property tive dispute not and cannot The Court does water regulation of Legislature’s Does in purpose promul- Legislature’s that the are outside in areas that suburban quality to balance sever- was jurisdiction amount these statutes city’s gating extraterritorial an- delegation? The considerations, among being an unconstitutional them chief al no, and questions to these should be swer and the quality need to maintain opinion is examined when the Court’s de- unduly hinder economic not to desire mind, logic that the dearth of in this State. See velopment Water apparent. decision is Court’s enacted Legislature 26.003.2 to understand what I am at a loss because the Water Code 26.179 of clearly since it driving opinion, the Court’s namely city, least one it concluded that at I decision-making. know is not reasoned Austin, authority Leg- abused the had raw only today the Court exercises it given under section islature had Legisla- the will of the power to override ETJ, within its pollution regulate of Texas. The people ture and of could do the same. that other cities private blow to Court strikes a severe 26.179,4 Legislature By passing authority that rights usurps of the free- landowners some restored to govern- to another is reserved branch enjoyed they regulation dom from Legislature. If the Court has ment —the city’s engulfed by was before their land holdings applying intention of ETJ. cases, the will this case to future Court impair property rights, all manner of summarized, Briefly Legislature’s ability to func- hamstring cities’ within certain gave large landowners Texas Constitution and the tion as the at least 500 Owners of ETJs an election. people of Texas intend it should. in those ETJs acres of land contiguous by This case should have been resolved to abide either to continue could decide principles of applying straightforward two adopted ordinances city’s quality law. The first is that it is not an unconsti- 26.177, of two or meet one under section to restore to tutional different state-mandated jur- city’s extraterritorial The first under section 26.179. standards land- property rights isdiction that other maintain back option was to state-granted enjoy. The second owners across the state water levels of water ground authority to that the of Austin had capture was to ways, and the second its because the regulate within ETJ rainfall from 1.5 inches of retain the first granted authority. it 26.179(a). areas. See id. developed it take Legislature grants, What promulgat 26.179 and Section away from its own subdivisions. Re the Texas Natural ed under

I set Commission sources Conservation these as to how specific forth directions ap- at issue provisions The Water Code to be achieved levels were cities.1 The water the ETJs of certain ply I, Court, Appendix A. 3. See cite the 1995 version of like the infra indicated. The unless otherwise Water Code Water Code do not amendments to the Appendix trial court held A. The 4. See infra apply to this case. was unconstitutional. that section Appendix A. 2. See infra id.; just city’s that landowners outside a ETJ

and verified. 30 Tex. Admin. (1996). §§ delegated legislative power 216.1-.11. have been be- Code they may cause use their land free from concedes, must, The Court as it that in city? Obviously, a the an- regulation requirements addition to the of section majority swer no. The of land in is vast 26.179, required are to landowners meet all Texas of a lies outside the boundaries then-existing quality state water reg- that, city’s suggest ETJ. It is ludicrous to all regulations ulations as well as future regulations comparable since there are no necessary comply with federal stan- city regula- nuisance and environmental dards, subject and that landowners tions rural areas or suburban areas regu- the TNRCC’s to enforce those ETJs, outside has uncon- Thus, lations. See 22 at 880. land- S.W.3d stitutionally develop allowed landowners to within city’s owners an affected ETJ are type gov- their free from this of subject regulation to more state than are oversight. ernmental just a an few feet outside ETJ and rural landowners all across Texas. totally ignores The also the fact Court then, question, concerning city

The landown- a regulate quality could not within and ers outside cities’ ETJs Legisla- within its at all unless the ETJ regulating whether the State’s scheme of It gave authority. ture an quality amounts to unconstitu- delegation Leg- unconstitutional when the legislative power. tional I of city’s islature landowners within a restores question. turn to that as a ETJ same status those outside 26.179, the

city’s Leg- ETJ. Under section simply islature returned to landowners II rights within an ETJ that other landown- opinion extensively The Court’s focuses enjoy. ers all across Texas types city on the ordinances that would longer apply no within an if a land- ETJ throughout The rhetoric is laced owner elected to create a water as the statement that opinion, Court’s such zone and to protection comply with State exempt “landowners’ themselves opposed city as standards. municipal regula- from the enforcement of See, e.g., S.W.3d at 875. Under section legislative power,” tions is also S.W.3d 26.179(i), Legislature prohibited city analysis for sound at is no substitute within nui- acting its ETJ abate con- legal principles of fundamental sances, pollution, any control enforce city’s power cepts. The Court elevates a environmental that were incon- over that This is regulate State. sistent with a land use and water disapproves indefensible. If the State filed a landowner connection regulations that cities have extended to quality protection with a water zone. See ETJs, may those their the State abolish 26.179(i). And the Tex. Water regulations or even abolish ETJs Legislature prohibited city from annex- surely It follows as entirety. their ing land such a zone until earlier of day that a State there- night follows twenty years from the date the zone is landowners in an ETJ from fore release designated ninety percent or when at least uncon- grip city regulation without all and infrastructure described facilities stitutionally delegating legislative power. quality plan the water for the zone have completed. been See id. Ill aspects finds these Court provision in the Texas Constitution particularly offensive. Yet prohibits from dele

cannot enforce of its ordinances even that private citi gating legislative powers mean its yard beyond one its ETJ. Does this III, in interest.” S.W.3d their successors is Article Section 1.5See Proctor zens (Tex. however, Andrews, Court, struggles 732-83 879-80. The 1998). Historically, property conjure examples what of how private mightily up to to their might owners have chosen do with own of own landowners’ use their land a power.” land has been 22 “legislative parties. not affect third indirectly But effects are no S.W.3d at 879. those the Texas Constitution was use of different from effects provide preservation amended to neighbor on a or third may land have resources, in- and conservation of natural away. parties tens or of miles hundreds water, cluding rights “public were property The of one’s own does use “the Legislature duties” and that shall legislative implicate delegation power. a of pass may appropriate all such laws as be legislative authority pri A of to Const, XVI, 59(a). thereto.” Tex. art. necessarily vate or entities con individuals provision away private does not strip This those or templates that individuals entities property rights owners’ to decide how to say so over third will have some direct develop their land. It directs the parties. In cases that the Court cites re “all Legislature pass to such laws garding delegation, a individual appropriate” preserve be to and conserve empowered directly control group was water. Id. Accordingly, landowners re- See, e.g., rights the actions or of another. tain the to make right decisions about the Found., Texas Boll Eradication Weevil development subject of their own property, (Tex. Lewellen, Inc. v. 952 S.W.2d Legislature may pass laws that the re- 1997); County v. Fleet Indus. garding preservation conservation of of Fairfax L.P., Park 242 Va. 410 S.E.2d 669 water. A private landowner’s decision (1991); Bayside Timber Co. v. Board develop about how to does not of Supervisors, Cal.App.3d Cal.Rptr. “legislative power” become the exercise of (1971). That is is not what at issue III, meaning within the of Article Section here. XVI, 1 by virtue of Article Section 59. The quarrel Legislature Court’s with the says that “[w]ater Court is, bottom, question delegation, not a regulation power.” legislative question whether, but in the Court’s I But I agree. disagree S.W.3d at 875.

view, the Legislature laws that has Legislature has with the Court that passed “appropriate” preserve and delegated quality regulation to land conserve Id. has water. The Court over- under section 26.179. It is the owners stepped constitutionally prescribed bound- Legislature who determined the water aries. It the Legislature is for to decide quality A who standards. landowner “appropriate” laws are what to conserve comply elects not to ordinances water. That not a function this or must cover water meet any other court. Specifically, State’s standards. landown plan maintaining under in this back scrutiny statutes case er must have decisions, permit ground landowners make in water levels limits, ways maintaining within about how to use their own the first inches developed The Court concedes that rainfall from areas. See property. “power in give 26.179 does not 26.179. Section 26.179 WateR Code others,” requirements cludes maintain private property over detailed power particular ing background quality. “the law to levels of water 26.179(b). A must individuals other than themselves and See id. landowner together provides: Representatives, 5. The Texas Constitution shall styled "The of the State of Tex- Representatives 1. Senate and House of as.” Legislative power Sec. of this 1. The State Ill, § in a shall be vested Senate and House of Tex Art. Const. also meet all then-existing laws re empowered by state the Texas Constitution to garding water quality and all future pass state “all such as may laws be appropriate” laws to the necessary extent comply preserve and conserve water. (m). Const, 26.179(k), with federal law. See id. XVI, § art. 59. The has done so. It delegated has not The Court insists that section 26.179 responsibility to landowners. The Court results in a delegation legislative because cannot use power its to strike legis- down includes “the provide lation as unconstitutional simply because law, details of the to promulgate rules and the Court does not think legisla- that the law, to apply the and to ascer- goes tion enough far to maintain water tain upon conditions which existing laws Austin, quality in Texas. may operate.” First, 22 S.W.3d at 873. Legislature has set forth the laws that IV

must be followed within section 26.179 it- self. matter The Court’s left to a determination landowner to strike is how he will down water physically capture quality laws rather than trying first to uphold inches of rainfall them is apparent or maintain back- when it applies ground levels of water the Boll quality. Weevil factors. I would reach Complying with the law those is not the same factors because making there has been no Second, delegation law. here. nothing in But I think it impor section 26.179 is gives tant landowners the illuminate the to make rules shallowness and regulations. transparency of the requires reasoning Section 26.179 Court’s in landowner to submit a its plan showing discussion these how it factors intends to meet the Court’s failure to by longstand State-mandated water abide “ quality ing common-law standards. That does tenet that ‘[i]f not amount under to giving possible state of rule-making landowners facts an act would authori- ty. constitutional, But even if a water the courts are protection pre bound to ” plan under section sume such 26.179 could facts exist.’ Texas legitimate- Workers’ ly be rules, Compensation Garcia, imposing characterized as Comm’n 893 (Tex.1995) whom would those rules S.W.2d 520 apply? (quoting As we Corsi seen, Mills, have cana Cotton inescapable Sheppard, answer is Inc. v. that (1934)). the plan only applies to the landowner who files it and his successors interest. The Although the Court concludes that the Court concedes as well that section 26.179 third and fifth weigh Boll Weevil factors give does not any authority finding favor of “delegation” constitu- over the property of others. S.W.3d at tional, the Court remaining finds that the Directing landowners to file im- First, tip factors the scales the other way. plement a control plan that says, the Court meaningful there is no applies only to their own property does not governmental review. This is belied amount to a of legislative pow- the fact has rejected TNRCC er. landowners’ plans pro- for water quality

The Legislature has determined the con- tection zone under forty section 26.179 sequences if a landowner fails percent to meet the of the time. If the TNRCC is not State-prescribed providing review, standards. meaningful why it is re- obviously Court jecting Nevertheless, believes that those plans frequently? so consequences are not enough. severe It Court is resolute its failure to extensively criticizes Legislature’s requirement the well-established for hold- regulating quality, scheme for ap- ing that a statute is unconstitutional on its See, parently face, finding statute, it too minimal. e.g., namely, “that its terms, S.W.3d at 878-79. But that always is not call operates unconstitutional- Garcia, for this Court to make. The ly.” (emphasis 893 S.W.2d at 518 added). unconstitutionally delegated legisla- justify can the an lature How Court I submit sector? that this stat- tive ivory-tower pronouncement is a questions answer these agency afford meaningful ute can never “no,” the answer resounding offices agency when over review happening, be the same for other meaningful actually review should state, of whether regardless determined owners simply unless Court takes, not, city’s to strike is located ETJ. say whatever true or their land within down this statute? V glosses The Court also over the fact dissent, join in Justice Abbott’s fully 1,000 acres, the I

unless a zone has or more analysis City’s his including until go cannot into unless and effect 26.179. challenges to section constitutional Then, approves the Court the TNRCC it. I the trial Accordingly, would reverse Legisla- finds fault with the fact that the judgment judgment court’s and render placed proof ture has the burden of the Texas Water that section of if Are application an is denied. TNRCC any of is not unconstitutional for the really to that the consti- prepared say we by City of Austin. reasons advanced the has tutionality of a statute turns on who the proof? Why the burden of should have the proof

State not burden of here? has the when it proof State burden of sum, the says In Court that landowners seeks to restrict the such rights exercise of city’s trapped within ETJ are somehow and liberty. those to life ru- footing than on different constitutional or even suburban landowners who are ral elevating The Court’s with obsession city’s city’s not in a limits or a ETJ. The city regulation ordinances above state also must, says, impose the exten- State Court again in crops up analysis its of the ade- place regulations city sive of ordinances quacy governmental of and in regulation unconstitutionally or else the State has analysis the its fourth and sixth Boll delegated legislative authority. Because Weevil factors. See 886- S.W.3d obviously is so the Court’s conclusion But, above, as discussed the facts that ruling and because the is an flawed Court’s than a city regulates, the State rather and into the domain of impermissible incursion that the State’s less oner- are I Legislature, the dissent. city’s, ous than a do not mean that the delegated regulatory State its APPENDIX A

to the sector. analyzing In fac- second Boll Weevil 1995 Texas Water Code Provisions tor, the Court faults section because Policy Subchapter 26.008. This provide hearings does not to public give pur- an parties policy third to be It is the of this state and opportunity give not maintain right appeal pose subchapter heard and it does of this to at 884-85. of water the state consistent parties. third Texas, enjoyment, landowner in public When a rural West health and city’s ETJ, protection is far from a decides to and of terrestrial propagation who life, develop property, aquatic operation existing and his and subdivide industries, development hearing necessary neighbors so that and economic state; lodge encourage promote downstream water users can com- of the area- plaints? pro- development regional If the not does use treatment, collection, and dis- parties ap- some means for third waste vide wide disposal waste peal posal systems a landowner’s to subdivide serve the decision state; Legis- rural of the develop property, has the needs citizens require the use of all reasonable city methods or as reasonably required implement policy. commission, this by the will provide effective pollution control and abatement for city, including following General services 26.011. and functions: Except specifically as otherwise provid- (1) development and maintenance of ed, the commission shall administer the inventory of all significant waste dis- provisions chapter of this and shall estab- charges adjacent into or to the water lish the in, level of to be maintained and, within city where the so of, and shall control the water elects, within the juris- extraterritorial in this state as provided by chapter. this diction of the city, regard without Waste discharges impending waste dis- whether or not the discharges are autho- charges covered the provisions of this commission; rized chapter subject to reasonable rules or (2) regular monitoring of all signifi- adopted orders or issued by the commis- discharges cant waste included in the sion in the interest. The commis- inventory prepared pursuant to Subdivi- sion has the specifically and duties (1) subsection; sion of this prescribed by chapter and all other (3) samples the collecting of and the powers necessary or convenient carry conducting periodic inspections and responsibilities. out its chapter This does tests of the discharges being waste to discharges of oil un- covered monitored to determine whether der Chapter Natural Resources Code. discharges being are conducted in com- § 26.177. Water Pollution Control Duties pliance with chapter any and appli- of Cities orders, cable permits, or rules of the (a) Every city in having commission, this state they and whether should be 5,000 population of or more inhabitants by covered a permit from the commis- shall, any city may, sion; of this state estab- pollution lish a water control and abate- (4) commission, cooperation with the program city.

ment for city The shall procedure obtaining compliance by employ or retain an adequate number of monitored, dischargers being waste personnel on part-time either a or full-time including necessary where the use of basis as the needs and circumstances of legal proceedings; enforcement city may require, by who virtue (5) development and execution of training experience their or qualified are plans reasonable and realistic for con- perform pollution water control and trolling abating pollution or poten- abatement functions required enable the pollution tial resulting generalized from city carry out its duties and responsibili- discharges of which waste are not trace- ties under this section. source, a specific able to such as storm discharges sewer and urban from runoff (b) The pollution control and rainwater; and program city abatement of a shall encom- (6) services, functions, any additional and, pass city subject the entire to Section requirements may other be pre- code, may of this include areas by scribed commission rule. jurisdiction within its extraterritorial judgment city (c)The of the should pollution control and be included city to enable the to achieve program required by abatement Subsec- objectives (a) (b) city for the area tions of this section must be within jurisdiction. city its territorial The submitted to the commission for review program may shall include in the the services approval. adopt The commission which, judgment providing and functions rules the criteria for the estab- data col- either from sufficient and the review established programs of those lishment monitoring at lected from programs. approval of those within the' area or more sites located one (d) by any ruling, affected Any person quality protection designated as a water ordinance, order, decision, program, reso- unavailable, or, from zone if such data lution, city relating or other act of by certified performed and calculations control and abatement out- pollution utilizing engineer registered professional corporate limits of such side the the National concepts and data from to this adopted pursuant (NURP) Program Study or Urban Runoff statutory may appeal authorization Natu- by the Texas approved other studies such action to the commission or district Commission ral Resource Conservation appeal court. An must be filed with the (commission) resulting for the constituents days commission within 60 of the enact- runoff, such average annual until order, decision, ruling, ment of the ordi- available. data collected at the site are nance, resolution, or act of the program, sites Background undeveloped levels city. appeal The issue on is whether monitoring re- shall be verified based invalid, un- program arbitrary, action or property within sults from other areas of reasonable, inefficient, or ineffective in its prior development. the zone to its attempt quality. to control water of a minimum of monitoring shall consist commission or district court overturn (flow) composite sample for stage one modify city. the action of the If an inch or least four storm events of one-half appeal ruling, is taken from a commission that occur at least one more of rainfall ruling the commission shall be effect for four con- apart. Monitoring month purposes disposition all until final is made stituents shall be determined monitor- competent jurisdiction a court of so as where runoff ing at four or more locations delay any permit approvals. not to sample occurs. A minimum of four events (e) adopt The commission shall and as- rainfall per year for each location for ade- necessary sess reasonable and fees inch shall greater events than one-half be quate to recover the commis- costs for three Monitoring shall occur taken. in administering sion this section. of de- years phase consecutive after each Quality velopment occurs within Water Nonpoint Source Water Pollu- 26.179. phase Zone. Each new of devel- Protection Programs tion Control Munici- Certain including manage- opment, associated best palities require monitoring for practices, ment will (a) section, quality pro- “water three-year period. The results of the may by: tection” be achieved monitoring description and a of the best (1) background of wa- maintaining levels being used management practices quality waterways; in ter or throughout shall summarized the zone be. (2) capturing retaining the first 1.5 to the report in a technical and submitted areas. developed inches of rainfall from 1 of each April commission no later than (b) (a)(1), purpose For the of Subsection during development of the year calendar “maintaining background levels water although the commission property, waterways” maintaining quality in means re- monitoring longer is no determine in wa- background quality levels of water shall review the quired. The commission terways comparable to those levels which mon- report. performance If the technical mea- prior development existed to new in- itoring management practices and best total by following constituents: background sured levels were dicate that solids, total suspended phosphorus, during year, total the previous maintained of land within the wa- developer and chemical and ox- owner or nitrogen, biochemical zone shall: quality protection ter levels shall be ygen Background demand.

(1) streambeds, modify plans quality quasi-public water devel- or land, part integrated develop- or it is of an oped under phas- this section for future ownership ment under common or control. development es of in the quality water purpose quality protection of a water protection zone to reasonably the extent zone to provide flexibility necessary practical; feasible and development facilitate the of the land (2) modify operational and maintenance zone, within the but which also is intended practices existing phases in of the water to result in the protection quality quality protection zone to the extent rea- water within the zone. sonably feasible and practical. (e) A quality protection water zone des- Water monitoring shall not be re- ignated under this shall be de- quired using methodology areas de- by desig- scribed metes and bounds. The (a)(2). by scribed Subsection general description nation shall include a (c) applies only This section to those zone, proposed of the land uses within the jurisdic- areas within the extraterritorial zone, quality plan water for the and a tion, outside the mu- corporate limits of a general of the description nicipality population greater with a than con- facilities and infrastructure to be 5,000, municipality and which the either: quality protection structed for water (1) zone. attempted has enacted or to enforce

three or more ordinances amend- (f) quality protec- Creation of a water thereto attempting regulate ments immediately tion zone shall effec- become or control or abate water upon designation tive recordation of the pollution the area within the five county records of the in which deed years preceding designation the effective date of this the land is located. The shall Act, signed be the owner owners whether or not such ordinances or land, filing and notice of such shall legally upon amendments were effective given municipality clerk area; jurisdiction within whose extraterritorial (2) attempts enacts or to enforce three the zone is and the clerk of the located or more ordinances or amendments county in is located. which the attempting regulate thereto zone, (g) quality plan The water for a quality or control pollu- or abate water including background the determination of any five-year tion in the area in period, quality, signed levels of shall be whether or not such ordinances or registered professional engi- sealed are legally upon amendments effective de- plan neer the is acknowledging the area. protec- signed quality to achieve the water (d) contiguous The owner or owners of a in tion standard defined this section. On 1,000 in tract of land excess of acres that is records, in the water recordation the deed subject located within an area to this sec- and ac- quality plan shall be submitted to may tion the tract as a “water designate cepted by approval, the commission for protection prior quality Upon ap- zone.” ap- and accept and the commission shall commission, proval of the owner of a the finds prove plan the unless the commission contiguous containing tract of land less implementation plan of the will acres, 1,000 but than than not less protec- reasonably quality attain the water acres, that is located within an area sub- in section. A water tion as defined this ject may designate also may from time to quality plan be amended quality protection tract as a “water zone.” commission, and all filing time on with the contiguous The tract shall be deemed if all by the accepted be such amendments shall adjacent, its parts physically finding without a commission unless there is amendment, easements, roads, the attainment regard rights-of-way, impair will quality protection municipality. for the A water of water as defined annexed annexed quality protection zone be adopt this section. The commission shall only after the municipality a installation necessary and assess reasonable and fees all facili- completion percent and of 90 adequate to recover the costs of the com- ties and infrastructure described in administering mission this section. The plan water for the entire zone as quality approval commission’s review and of a wa- necessary carry plan out such or being quality plan performed by ter shall be years from the date of expiration of 20 responsible commission staff that is zone, occurs designation of the whichever in the reviewing pollution plans abatement first. county where zone is located. approval

review and of the shall be plan (j) a water plats Subdivision within completed days within 120 of the date it is protection approved zone shall be quality filed with the A commission. hear- municipality whose extraterrito- ing plan required, on the shall not be jurisdiction rial zone is located review, acceptance, approval county of the of the in which commissioners court quality or plan quality protec- water water the zone is located if: tion delayed pending zone shall not be (1) plat complies with the subdivi- adoption of rules. The commission shall design regulations county; sion proof have the burden of for the denial of a plan or amendments plan, any to a (2) plat acknowledged by regis- is appealable such denial shall be a court professional engineer stating tered competent jurisdiction. qual- The water compliance plat water thereto,

ity plan, any or amendment shall quality plan quality within the water upon be plan effective recordation of the or protection zone. the amendment in the deed records and (k) quality protection A water zone im- apply during shall period of review and plementing quality plan a water approval by appeal or commission requirements meets the of this section any the denial of the amendment. presumed satisfy shall be all other state (h) The quality plan for a zone requirements protection and local for the shall running covenant with the land. however, quality; provided, of water that: (l) in the zone com- development shall

(i) A municipality may not enforce ply with all state laws and commission ordinances, zone of its land use ordi- which are regulating rules nances, rules, requirements including, zoning desig- in effect on the date the to, but not limited the abatement of nui- nated; and sances, pollution control and abatement (2) super- in this shall nothing programs regulations, or- applicability or interfere with the sede dinances, requirements, subdivision measures or than technical review and inspections by a conservation and reclama- adopted connecting to municipally utilities owned comprising more than two tion district system, any water or wastewater or envi- apply counties and which water- ronmental which are inconsis- a surface lake or surface shed area of plan tent with the land use and the water 4,000 impounds at least reservoir limit, quality plan any way or which acre-feet of water. modify, impair ability implement the (I operate quality plan )(1) the water and the provisions or more of the One filed; land use within the zone as nor may by be waived the owner this section municipality shall a collect fees or assess- that is or becomes owners subject ments or exercise of eminent do- into after agreement to an entered main within a zone until the zone has been the effective date of this Act between standards, requirements, permit provi- zone owner or owners of land within the sions, regulations. agreement municipality. and the parties may and the writing, shall be (n) This section does not to an agree: jurisdiction area within extraterritorial municipality population greater of a with (A) guarantee continuation of the ex- 900,000 that has extended to the ex- than traterritorial status of the zone and its jurisdiction municipali- traterritorial munic- immunity by from annexation purpose pre- an ordinance whose is to ty ipality period for a not to exceed 15 pollution aquifer of an which is vent years after the effective date of the drinking water principal sole or source agreement; municipality. for the (B) to authorize certain land uses and ABBOTT, dissenting, joined by Justice zone; development within the HECHT and Justice OWEN. Justice (C) by the mu- to authorize enforcement disagree holding I with the Court’s municipal land use nicipality certain unconstitutionally delegates section 26.179 development regulations within the I landowners. legislative power zone, regula- in the same manner such hold that section 26.1791 is not would municipali- tions are enforced within delegation and that it does unconstitutional boundaries, ty’s agreed by not violate of the other constitutional municipality;

the landowner and the its mo- provisions asserted (D) vary any protection watershed Accordingly, summary judgment. tion for regulations; I dissent. (E) creation to authorize or restrict the I zone; political subdivisions within the much This case is not so about power it about the of local quality as (F) to such other terms and consider- in their extrater- governments regulate parties appropriate, ations the consider (ETJs). gov- jurisdictions ritorial Local to, including, but not limited the continu- regulate ernments’ zoning ation of land uses and after an- from the au- solely derives their ETJs zone, provision nexation of the Legislature them the thority granted service to the

water and wastewater By passing later section 26.177. zone, and the waiver property within 26.179, com- established Legislature provisions or conditional waiver of pri- prehensive guidelines empowered this section. responsible make deci- vate landowners to doing quality. regarding sions (2) An under this section agreement so, regula- stifling reduced requirements meet the of and have shall imposed burdens tions and administrative agree- force and effect as an same Today, 26.177. by cities under section pursuant ment entered into to Section legisla- of its strips Court 42.046, Local Government Code. authority regulatory limit the tive (m) requirements of In addition to the governments, and granted to local (a)(1) (a)(2), the commis- Subsections regulatory power improperly vests Court may require and enforce additional sion City of Austin. in the hands of the to com- quality protection measures Legislature’s usurps decision Court’s and to mandatory public policy federal water to determine ply authority 5310-13. Tex. Gen. Laws to the Water Code unless 1. All citations are addition, inapplicable amendments are section 26.179 Because those noted. In otherwise case, to section 26.179 pending. to this all citations while this was was amended case th R.S., 1999, 28, pre-amendment version. Leg., ch. to the May See Act of subject denigrates private prop- make law and lation of water landown- addition, erty rights of landowners. ers than for the vast numbers of Texas city’s demands more and more landowners outside a ETJ who are regulation, Court It calling existing subject into a number not to section 26.177. can question of contemplated legislative policies presumed and be the Court would hold forcing the state down a road of that these landowners are also dangerous numerous regulation increased administration somehow victims of an unconstitutional privatization. authority. and decreased legislative Given today, my suggestion the Court’s decision Legislature’s It is the responsibility to to the is to eliminate section Legislature noted, regulate Texas. As simply 26.177 and start over. Legislature chose to allow cities regulate in their improperly tying Legisla- ETJs via Besides hands, section 26.177. But wholly the Court fails ture’s also to ac- Court fails recognize Legislature that the has the knowledge potential consequences of rewrite, restrict, power to its Legislature even elimi- decision. The has demon- violating nate section 26.177 without empower strated its desire to individuals City Texas Constitution. The through variety privatization of Austin’s initia- right regulate its was ETJ tives such as school choice and school Legislature. created Surely it can- opinion vouchers.2 Would the Court’s be unconstitutional for the policy mandate that such choices be strick- authority. limit that Section 26.179 is delegations? en as unconstitutional The merely just a vehicle to do that —it curtails same question applies Legislature’s to the regulatory ability private prisons.3 administrative to establish And given in section 26.177. But existing legislative grants what about the Court concludes that this reduction eminent domain enti- City’s invalid, regulatory authority is ties?4 The Court cannot reconcile such in doing so the displaces Court policies with its decision. In addition to Legislature’s policy rendering decision with its viability own of these and other regarding how water should regulated legislative policies questionable, in Texas. Court’s decision leads the state down a dangerous path requires more and necessary import of the Court’s regulation privatization. more and less It opinion 26.177, is that enacting section Legislature’s is the policy choice—not the the delegate can gov- to local Court’s—that should determine authority ernments the to regulate, but its regulation amount of needed. hands are tied when it limit wants to authority. conclusion, In reaching its provides comprehensive Section 26.179 Court fails acknowledge that section water-quality regulation applicable land- provides 26.179 comprehensive regu- more owners. The Court concedes that section Eng. Org., Analysis, 171, 172, 2. See House Research Bill J. on Crim. & Civ. Confinement th 1, (1995); Leg., S.B. R.S. also Colo- see 196, (1995). ría, Public Schools—A Privatization of Statutory Analysis and Constitutional in the See, e.g., 111.019(a), (b) Tex. Nat. Res.Code Wilkinsburg Education Association Context (granting common carriers eminent domain District, Wilkinsburg School 100 Dickinson (electric power); Tex.Rev.Civ. Stat. Comment, (1996); Egle, L.Rev. cooperatives); Tex.Rev.Civ. Stat. Implications The Constitutional School (telephone cooperatives); Tex.Rev.Civ. Stat. Choice, (1992). 1992 Wis. L.Rev. 505-07 (certain nonprofit art. 3183b-l charitable cor Blakely Bumphus, 3. & Private Correction- centers); porations affiliated with certain medical Management: Comparison Enabling al A (railroad Rev.Civ. Stat. art. 6351 Tex. 49; Probation, June Legislation, Fed. (elec companies); Tex.Rev.Civ. art. 6535 Stat. Dipiano, They Private Prisons: Can Work? Pa- railway companies). tric nopticon Twenty-first Century, in the 21 New 900 provides statutory fairly operational detailed cation of and maintenance guide in practices

standards formulat- in existing phases whenever wa- ing their initial 22 water-quality plans. ter has not been maintained. at 887. S.W.3d And the Court concedes Rather than requiring Legislature the in addition to require- that the extensive detail, spell every out recognized it is well 26.179, ments landowners re- delegations only that need establish “rea- subject to pre-existing main state water- guide sonable standards” sufficient to regulations, future state water- entity powers delegated, to which regulations comply necessary to when especially conditions must be consid- standards, with federal and the TNRCC’s that cannot conveniently ered investi- enforce 22 regulations. those gated by Legislature. See Railroad S.W.3d at 887-88. But the Court under- Co., v. Lone Comm’n Star 844 Gas S.W.2d policy analysis proclaims takes its own 679, (Tex.1992). said, have 689 As we legislatively regula- that established “[r]equiring the ev- legislature to include tions section 26.179 are insufficient. ery detail and unforeseen cir- anticipate says The applicable Court numerous delegate cumstances the statutes which regulations go enough do not far and that ... authority purpose would defeat the of citizens have too much latitude to delegating legislative authority.” Id. The despite make their own fact decisions— Court now abandons these standards. that the deems to be Court inadequate comprehensive are so that the Last, although the Court claims to synopsis occupies mere them Court’s the standard of review for a facial chal paragraphs opinion. nine its lenge constitutionality, to a 22 statute’s 878, say fails to what

Despite existing regula- S.W.3d Court numerous tions, apply it. In the Court that standard is and fails to wants more. Court this, impossible requiring challenge creates an facial such as it is chal standard Legislature the minutia of that the regulate lenger’s burden show statute development. example, although always operates unconstitutionally. land For Bar- 26.179(b) requires years shop Underground three v. Medina Wa County Dist., 618, after monitoring completion of each ter Conservation 925 S.W.2d (Tex.1996); wants phase development, Compen the Court 623 Texas Workers’ Garcia, 504, monitoring. more concludes v. Court sation Comm’n 893 S.W.2d (Tex.1995). because the require statute does not 518 Rather than demonstrat development always operates occur in no mon- that section phases, ing itoring required unconstitutionally, ignores would be until a zone is the Court standard, completely developed. ignores 22 at 882. that the S.W.3d the fact statute spe- applied Although require constitutionally the statute when operated “phases,” simple surely re- denied logistics plans cific two were TNRCC, hypothesiz quires development stages. occur and instead insists “could” developments may ing ways Because the nature of which the statute so, doing vary, prescribe unconstitutionally. could not operate every the anal types phases fundamentally changes the number the Court development, and should not a facial as it been ysis challenge the Court attempt repeatedly applied to force the to do so. stated and Moreover, Supreme the Court that devel- and the United complains Court States Ass’n modify plans must New Club opers water-quality Court. See York State 1, 11, development phases. City, for future New York S.Ct. U.S. (1988); 2225, they could 101 L.Ed.2d 1 United States at 882-83. But how And, Salerno, 107 S.Ct. modify past? in the section v. U.S. (“A 26.179(b)(2) (1987) modifi- L.Ed.2d facial chal appropriately requires is, course, ... lenge the most difficult simply City’s owners. It curtailed the au- challenge successfully, to mount thority provided since the within its ETJ and challenger must establish that no set of landowners with an alternative state-es- circumstances exists under regulated which the Act tablished and water-quality itself, would be valid. The fact Legislature that the scheme. Because the [Act] might 26.179(f), operate unconstitutionally via under section mandated that cer- some conceivable set of city regulations circumstances is tain be suspended, and insufficient_”); Andrews, Wilson 10 determined which would be 663, (Tex.1999); Barshop, suspended, delegation there has been no 623; Garcia, S.W.2d at power suspend 893 S.W.2d at 518. of the laws to the land- addition, owners. because the land- Although required to construe statutes specific owners must meet standards es- to be possible, constitutional whenever Legislature tablished in section doggedly Court construes the statute in a 26.179and because the landowners are manner that renders unconstitutional. comprehensively regulated example, For the Court concludes existing TNRCC and state and federal monitoring more necessary, but then standards, in implementing laws those goes out of its way to hold that section 26.179 does not delegate any other TNRCC cannot require monitoring governmental authority to the landowners. zones opting to retain rainfall. Instead of micro-managing and forc- A ing an increase in regulation needless In order to determine whether section this area possibly others, many 26.179 is an delegation unconstitutional Court should conduct a proper facial-chal- legislative power, it is and, important to under lenge review do, as it is bound to statutory stand the construe framework within the statute in a constitutional which section Chapter 26.179 exists. 26 of manner. governs the Water Code water-quality The only silver lining in the Court’s delegates maintenance and primary re opinion is its admittedly applica- limited for sponsibility implementing water-quality notes, tion. As the Court S.W.3d at 870 functions, management including enforce 1, n. the Legislature amended section actions, ment TNRCC. See 1999, 26.179in but the amendments do not 26.011, §§ 26.0136. In addi Water Code apply to this case. The appropriate- Court tion, the delegates some water-quali ly has not said that the amended act is ty maintenance responsibility gov to local unconstitutional. See, e.g., ernments. id. 26.0136. 1971, One such occurred in II when the delegated certain DELEGATION water-quality management authority to erroneously Court municipalities concludes that via section 26.177. ver- delegates certain sion of section 26.177 in effect in 1995 both the to exempt required every city population with a themselves from otherwise mu- applicable of 5000 greater establish a water-pollu- nicipal regulations and the power regu- program tion-control and abatement late on their city, and also allowed smaller cities to waterways 29, 1971, located on their property. To do Act of May Leg., so. See 62d R.S., 612, contrary, Legislature, by enacting ch. 1971 Tex. Gen. Laws 26.179, did limit municipal certain city programs 1980. These encom- 26.177, powers under section pass city but it did not entire include those delegate suspend laws or areas within the city’s city ETJ that the legislative authority to the land- determines should be included to enable development in objectives stantially regulate to achieve land its jurisdiction. area within its territorial ETJ. See Org., House Bill Anal Research 26.177(b). (1995);

id. have broad Leg., Cities 74th Tex. S.B. R.S. ysis, Comm, water-pollution-control pro- establish Resources, Bill Senate on Natural th 26.177, both in the grams 1017, under section 74 Leg., Tex. S.B. R.S. Analysis, Comm, city in the But limits and ETJ. this broad (1995); House on Natural Re regulate authority 1017, to the Tex. S.B. sourCes, Analysis, Bill th wholly legislative ETJ is derived Leg., (1995); Hearing Tex. R.S. on Comm, authority. grants of Natu S.B. 1017 Senate Before Resources, 4, 74th Leg., (April ral R.S. 2-3 city’s authority to Similarly, regulate Wentworth). 1995) (statement of The Sen. development wholly land in its ETJ regulation found that sti such legislative grant derived from a of authori- development, fled economic contraven ty. Section 212.003 of the Local Govern- tion its stated Water Code policy: of provides city ment that a extend Code to the its ordinances municipal gov- ETJ It is the of this state and the policy land, erning and of but plats subdivisions to subchapter of this maintain purpose (1) regulate buildings cannot the use of or of in the quality water state consis- (2) bulk, property, height, number enjoy- health tent with the and (8) constructed, of buildings size ment, propagation protection and (4) the number of residential buildings, life, and aquatic operation terrestrial per units that can be built acre. See industries, existing economic § If no municipal Loc. Gov’t Code 212.003. development of the state ... and to ETJ, only ordinances extended meth- the use of all reasonable require county regulations apply. land-use implement policy. ods to approach protecting to Austin’s 26.003; see also House Code Water authority under its section 26.177 Tex. S.B. Org., Analysis, Researoh Bill th regulate development, has been to land (1995). Leg., policy This R.S. by limiting develop- the uses and primarily compet to balance the recognizes need al., Bray ment intensities of land. See et ing conserving protecting interests Regu- Environmental Permits: Land Use existing continuing natural resources with Policy lation in Tex- Implementation future economic commercial activities Mary’s as, (1992). As L.J. St. al., supra, et development. Bray See noted, regulate city’s authority to land Thus, was intended to section 26.179 development under the Local ETJ authority the ETJ “exception” act But is limited. because Government Code 26.177 of the granted cities section Austin has used water-control measures Water Code. Tex. Water authority to effec- under its section 26.177 26.177(b). prevent Its is to purpose tively development limit land than —rather on land devel city-established limitations (but limited) authority to using express its 26.177 authori opment under their section regulate development land under section ty provide flexibility “to nec in order Local 212.003 of the Government Code— development to facilitate the essary of the Local City has evaded most water-quality-protection] [a land within limitations on cities’ Government Code’s zone,” ensuring at the time while same powers in the regulation land-use ETJ. within of water non-degradation Austin, Quick City generally oversight. via zone TNRCC Tex. Wa (Tex.1998). 109,121 26.179(d). ter Code enacting section 26.179 B responded its belief that 26.179 that section City contends improperly Austin us cities such as were the au- private authority “delegates ing 26.177 to sub their section thority suspend of certain standards of section quality protection enforcement maintaining within rainfall or (capturing ordinances and zones, background quality). levels of water immediately filing effective upon 26.179(g). The water-quality plan id. designation.” argues zone ap- must submitted the TNRCC for delegates improperly city may A proval. See id. enforce suspend laws landown- ordinances, a zone its ers, III, land-use ordi- in violation of 1 of article rules, nances, requirements that are Constitution, ar- separately the Texas plan inconsistent with the land-use and the gues section 26.179 allows improperly limit, any way or that in water-quality private entities to laws in suspend the impair ability modify, implement or I, of article mandate violation section 28’s operate water-quality plan and and the may the power suspend laws within the plan land-use zone as filed. See only by the Legislature. exercised 26.179(f). Thus, § id. section 26.179 cre- Const, I, (“No § art. of 28 ates schemes. regulatory two areas laws in be exer- suspending this State shall designated, applicable where no zone all except by Legislature.”). cised These city may be regulations enforced. But arguments are interrelated should be and designated, where a zone is together. considered state-regulated 26.179’s scheme applies delegation To determine whether a of city regulations powers and certain and occurred, suspend laws has inapplicable. are rendered language. focus on the statutory courts with, Legislature’s allowing To begin Texas Boll Weevil Eradication alternative, landowners to choose between Found., Lewellen, 454, Inc. v. 952 S.W.2d (Tex.1997). legislatively established 26.179(d) regulatory 473-74 al- Section . a delegation schemes is not See Helver lows landowners of a tract contiguous of 463, ing Corp., Stores Lemer U.S. designate land excess of 1000 acres to (1941) 86 L.Ed. 482 S.Ct. as a the tract zone. See Tex. Water Code 26.179(d). a statute (holding allowing taxpayers containing Owners of tracts alternative choose between tax bases than 1000 fewer acres but than 500 more delegation); was not a see Thomas also may zone, designate acres also a but only Cusack Chicago, Co. v. U.S. prior A approval. TNRCC See id. of (1917) 526, 531, 61 L.Ed. 37 S.Ct. may landowner achieve “water-quality pro- a (declaring city allowing (1) ordinance tection” within a zone main- by either by lift a zoning prohibition landowners to taining background levels water “is not (2) majority consent a waterways or capturing and retain- legislative but is ... power, a familiar ing the first 1.5 inches of rainfall from provision affecting the 26.179(a). enforcement of laws developed areas. See id. ordinances”). and zone, designating a When the landowner Moreover, when a landowner chooses must describe the by zone metes and by designating the state scheme a zone description bounds and include a general formulating water-quality and and land- proposed land uses within the zone city plans, any use (the inconsistent land-use plan), water-quality plan a plans with those are rendered inapplicable zone, general for the and a description of 26.179(i), by by the terms water-quality infrastruc- facilities and 26.179(i) Section plainly landowners. to be water-quality ture constructed for states that: 26.179(e). protection zone. See id. water-quality plan signed a may must be not enforce in municipality [a] ordinances, registered a professional engi-

sealed zone of its land use ordi- rules, nances, acknowledging requirements neer that the is de- or ... which plan signed achieve one of the two water- with the land use plan inconsistent quality plan plans), and the or which in use consistent with section 26.179’s limit, any way modify, impair purpose development or stated facilitate ability operate Simply implement maintaining quality. while plan all quality plan repealing suspending the land use section 26.177 filed; city regulations within the zone as nor shall in the ETJ —which municipality collect fees assessments Legislature could have done—would have powers domain too the Legislature’s exercise eminent been broad to serve removing only within zone until the zone has been ordi goal those annexed A water hindered municipality. unduly for the nances protection “subject zone development. be annexed Section 26.177 is 26.179, only the installa- municipality after to” section and remains in full ef tion and of all in all completion percent except fect areas where a zone facilities designated. and infrastructure described in Watee 26.177(b). quality plan the water for the entire But even a zone is where being carry designated, city regulations pow zone as out necessary expiration years plan such or the of 20 ers “inconsistent with” landowner’s 26.179(i). zone, designation § suspended. from the date of of the are See id. whichever first. occurs Although a landowner’s is devel- plan 26.179(i). Thus, § the and oped accordance with section 26.179 Water Code review, Legislature suspended City’s subject Legisla- the au to itself is TNRCC the thority that munici which city mandated certain ture could not know ordinances —it pal powers powers specific ordinances and are rendered and would conflict with a inapplicable; power specific city, it not the in a and delegate did landowner’s suspend Municipal which specifically to laws. See Harris v. thus could not denote Co., (Tex.Civ. suspend- and powers Gas 59 S.W.2d ordinances would be dism’d) App. purpose, Worth writ ed. To further section 26.179’s — Fort to (holding suspending municipal Legislature suspend that a law a the chose a a gas company city regulations rate ordinance when filed those with a inconsistent Rail to the supersedeas attempt comply bond that with landowner’s with complied guidelines water-quality regulation road not a del Commission was state scheme laws); 26.179, thereby to see al- egation power suspend of the established section State, lowing regulation and devel- water-quality also McDonald v. 615 S.W.2d un- (Tex.Crim.App.1981) (holding opment that under section 26.179 without Fostering delegate power city. to due interference from did achieving is a development by this balance suspend laws to Wildlife Commission statute, Legisla- provided via sufficient state interest Legislature, when suspension city regulations re of these regulating that certain wildlife ture’s laws powers, is consistent with the suspended sources when the Com and were relating Legislature’s policy stated Water Code proclamation mission issued resources). maintaining with those wildlife consistent 26.003. development. economic id. city which determined concede, the City As both Court and did regulations suspended, would be interest legislation this state serves narrowly in a section so manner tailored to regula- throughout by limiting cities’ Texas via purposes. Legislature, 26.179’s The- powers throughout the tory State. 26.179®, intended and did sus section the land- regulations support argument To its that pend city certain laws, (the annex, suspend city power to collect owner is entitled assessments, contends, City agrees, and the Court and the fees in or “a landowner is the sole arbiter of whether any regulations enforce ordinances and land- ordinance is ‘inconsistent with’ any consistent the water-quality with And, limit, only by reading ‘may modify impair’ his water zones. can narrowly statute Court But these are so plan.” contentions that a has occurred. conclude foreign stat- language to the actual ute; way does not in section 26.179 of a tract with repeat, To landowner empower the landowners to determine than 1000 acres and more than 500 fewer city apply. which will not Via regulations may not the tract as designate acres even 26.179, Legislature suspended section approval. prior a zone without TNRCC land- those laws “inconsistent with” the 26.179(d). But See Tex. Watee water-quality plans, owner’s and land-use exceeding landowners with tracts even for compliance must be formulated in (who the tract as may designate 1000 acres by approved section 26.179 prior approval), zone without 26.179(i). TNRCC. Id. Nowhere does water-quality provides certain authority give the statute landowners the standards must be met. These standards incon- to determine which ordinances are place limitations on landown- substantial plans. They sistent with their are not actions and are enforced er’s given any suspend license themselves TNRCC. any regulations. given Nor they even noted, under 26.179’s As state any rights against city city if fails scheme, achieve water- 26.179(i) comply with section enforc- by capturing either rain- protection Instead, ing regulations. if the en- by maintaining background fall levels of forced other ordinances or 26.179(a). Regard- Id. quality. a landowner believed be inconsistent chosen, option the land- less of which plans,

with its the landowner would have water-quality must formulate a owner relief, to resort to the courts for in which plan, ap- which must be submitted and courts, landowners, case the not would proved by the TNRCC. id. city decide which water-quality regulations § 26.179(g). The has the TNRCC Thus, with I plans. were inconsistent any plan implementation if disapprove reject City’s arguments would reasonably of the will not attain one III, section 26.179 violates article section of the defined water-quality-protection two I, and article section 28 of the Texas Con- Thus, standards.5 See id. stitution because the statute dele- does not water-quality-protection defined the stan- gate the power suspend laws to the dards, and the TNRCC is arbiter of landowners. whether landowner has satisfied one of

those standards. C If a landowner chooses to maintain back- City argues, also Court and the ground quality, levels of water section agrees, that section 26.179 impermissibly 26.179(b) imposes monitoring extensive re- delegates legislative power in violation of quirements. The must main- landowner III, pri- article section because it allows background tain levels of water vate set and water- landowners to enforce waterways comparable to those levels that within To quality standards the zones. development. existed new See id. before reach, conclusion, 26.179(b). contends Background § levels are estab- (1) delegates legisla- that section collecting “no data by lished either from authority tive at all” the TNRCC. Sim- within one or more sites located the zone (2) unavailable, ilarly, adopts unnecessarily Court if such data are performed by narrow certified interpretation TNRCC’s calculations and professional regulatory registered engineer using enforcement cer- and fact, approval TNRCC denied of two this suit. water-quality plans by filed the landowners approved by applicability water-quality the TNRCC measures tain methods adopted data available. See id. regulations until such a conservation undeveloped levels sites Background comprising reclamation district more and re- monitoring verified must be based counties to the than two and that within sults from areas of of a area surface lake or surface watershed See id. prior development. the zone its acre- impounds at least 4000 reservoir And, background lev- the determination 26.179(m) And, of water. Id. feet signed must be and els of may require that the and provides TNRCC engi- registered professional sealed water-quality-protection additional enforce § 26.179(g). id. Each new neer. See comply mandatory feder- measures with monitoring phase development requires standards, water-quality al requirements, minimum of three-year period, for a with a Id. regulations. permit provisions, or taken at four differ- samples per year four 26.179(m). Last, § still en- city id. locations where runoff occurs. See ent force ordinances 26.179(b). monitoring and a Results of are not with the land-use inconsistent prac- description management of the best id. water-quality plans. being used zone must be sum- tices 26.179(i). the TNRCC marized submitted to during unless the year development, authority each to enforce TNRCC 26.179(m) monitoring is no determines that TNRCC provisions these under If longer required. performance See id. Chapter 26 provisions and under other monitoring management practices and best 26.019, expressly such as section indicate that levels were background authority “to the TNRCC with provides during year, maintained previous nec- orders and make determinations issue (1) modify water-quality landowner must of [Chap- essary purposes to effectuate the phases development for future plans 26.019; id. see also id. ter 26].” prac- reasonably the extent feasible (“The agency is the [TNRCC] (2) main- modify operational and tical and implemen- responsibility for primary practices existing phases tenance func- management water-quality tation of reasonably practical. extent feasible actions, with- tions, including enforcement If a chooses to retain See id. landowner state.”). addition, sections In in the rainfall, inches this water- the first 1.5 that establish clearly Code Water monitoring See id. quality required. is not over “general jurisdiction has the TNRCC a landowner Regardless whether and the state’s rights” maintain capture rainfall or to chooses water-quality program, section background quality, levels of water any perform TNRCC has to section provides that —in addition 26.179 to the ex- “necessary and convenient acts landowner is requirements 26.179’s —the jurisdiction of its ercise federal, state, host of subject to a and other by Water provided [the Code] through- zone govern regulations 5.102(a). 5.013(a), §§ Id. laws.” by development and are enforceable out its zone, Thus, designating a for landowners example, section the TNRCC. For city water- simply replaces 26.179 section 26.179(k) development provides that pursuant quality regulations established laws and comply must with all state zone legisla- 26.179’s section 26.177 section quality regulating TNRCC rules standards —with tively established zone is in effect that are on the date city, oversight. In addition 26.179(k). Thus, TNRCC § each Id. designated. state, described and federal standards in a zone must satis- development phase 26.179(k) the landowners paragraphs, preceding requirements. these Section fy that will plan develop water-quality in section must nothing provides further water-quality stan- one of the interfere with meet two supersede or 26.179 shall Legislature. meeting success in the TNRCC’s water by dards established § 26.179(g). Compliance quality requirements.” id. with section 30 Tex. Admin. noted, additional state and 26.179’sstandards and 216.8. As the TNRCC has TNRCC rules and regulations monitored authority to enforce TNRCC by and enforced TNRCC. See id. designation, effect at the time of the zone’s (m). 26.179(g), may require to submit rec- reports indicating ords and whether those As noted once a previously, water-quali- requirements Although are satisfied. sec- effect, ty plan is in if a landowner has “[wjater 26.179(b) tion states that opted background to maintain levels of monitoring required shall not be areas fails, he modify but must using methodology by described Sub- existing operational prac- and maintenance (a)(2) rainfall],” [capturing section a rea- tices, modify plan his for future phases, interpretation sonable of that language, and obtain approval TNRCC of the modi- of the description comes the end 26.179(b), plan. (g). fied See id. of the water-quality monitoring required of TNRCC need not approve plan modified electing background zones to maintain wa- unless it plan reasonably finds the new will quality, ter the water-quality means that attain water-quality protection stan- 26.179(b) monitoring described in section dards section 26.179. id. applicable It to such zones. does not 26.179(g). necessarily reporting no mean that or as- that, points The Court also to the fact if required sessment of be type capture a landowner opts to the first 1.5 regulations. enforce other For if example, rainfall, inches of water-quality no moni- mandatory requirements required federal toring is required. Simply because moni- monitoring, certainly such monitoring toring is not required not mean does could required and enforced under sec- legislative authority has been delegated. 26.179(m) 26.179(b)’s tion despite The Legislature capturing defined apparently prohibition. Similarly, broad if inches of rainfall as a water-quality-protec- laws or rules in state TNRCC effect at the tion standard. If a landowner submits designation time of the require zone’s capture the first inches of rain- monitoring, monitoring such could be re- fall, which is aby registered sworn engi- quired and enforced the TNRCC. TNRCC, and approved by neer landowner complied with the standard sum, 26.179, enacting created by Legislature. The landown- Legislature established two water- required er is to capture to continue rain- applied (capturing standards to be throughout fall project’s development; maintaining background rainfall or levels Legislature the that doing states so will the quality), methods “achieve water-quality protection;” and the comply with which landowners must those requirement. TNRCC can this enforce acknowledges, As the standards. Court simple water-quality The lack of monitor- provides specific the statute standards and ing any legislative does not indicate that specific with comply means to them. authority delegated has been to the land- only The given discretion the landowners owners under this scheme. is in designing implementing the land-

The incorrectly plans Court also concludes use and water-quality satisfy to 26.179(b) “prohibits section these standards. Section does not monitoring TNRCC from or requiring delegate legislative power merely because monitoring” in capturing zones that are the landowners choose one of the two 22 legislatively rainfall. S.W.3d at 883. The TNRCC established methods and de- requires in plans landowners such zones to main- their own to specific vise meet tain certain submit imposed. records and them with standards Perot v. Federal Comm’n, quality plan’s “an assessment of the Election F.3d 97 559-60 (D.C.Cir.1996) (“One might [allowing representational system, there is no view such ‘ob- organizations specific to decide what re only landowners make decisions jective holding criteria’ to use a debate] gard property, to their own and the deci ‘delegation,’ organization aas because the are subject sions to TNRCC review and must use discretion.... But their imple both approval during before regulation respect, virtually any pri- Thus, mentation. to the situa contrast party ‘delega- vate could be described as a Weevil, in Boll designat tion authority, party tion’ of since the must ing zone under section 26.179 control normally in inter- exercise some discretion subject property, their own are to preting what actions it take to com- must legislatively and mean defined standards State, ply.”); Whaley v. Ala. regulation, ultimately and are ac ingful (1909) 941, 941 a street- (holding So. countable to the TNRCC and the courts. rules con- company’s right car make circumstances, such I cannot con Under cerning delegation, was not a transfers that any legislative power clude has been to make concern- right because rules delegated the landowners. ing independently existed transfers act, authority given not was delegation authority legislate). D Otherwise, only complete governmental delegate legisla- Section 26.179 does un- oversight control and avoid an would or enti- authority tive individuals delegation. Legislature

constitutional The III, violate article section ties and does not should not forced into the business of I, 28 of the Texas or article section detailing for all development plans I hold that Constitution. Because would state; parcels throughout land delegated legislative power no has been establish a sufficient landowners, I would not TNRCC) en- (through framework analysis part the Boll Weevil second being sure that satisfied. its standards (whether delegation appropriate). significantly This case differs Boll id. at 471-72. Weevil, in we found an uncon had stitutional occurred. See Found., Texas Boll Eradication Weevil Ill (Tex. Lewellen,

Inc. v. 1997). Weevil, cre the foundation Boll LAW OR LOCAL SPECIAL than ated statute was “little more challenges The also con posse” authorized make decisions local or law. special unconstitutional cerning property without people’s III, Article 56 of the Texas Consti- agen any supervision by governmental provides: tution J., (Hecht, cy. 484-86 concur Id. ring part dissenting part). The special Local and laws represented foundation the interests not, except as oth- shall members, growers who elected board Constitution, provided in erwise to con and the foundation was authorized special law pass local then devised duct referenda. board and applied them to guidelines eradication It could property. impose assess others’ counties, cit- the affairs of Regulating carry

ments and others’ enter districts; ies, towns, or school wards and could programs, out its eradication destroy require grower a cotton even exer crop. All these were

his taxation; Exempting property meaningful by cised without review a Here, id. governmental agency. See

909 arbitrary “a general And in all cases sification not mere device where is applicable, purpose giving law can be made no local or what resorted to for is, special fact, law shall be enacted.... law the of a appearance a local Miller, general at 1002. law.” 150 S.W.2d Const, Ill, § Tex. art. Section generally applies 26.179 to the argues 26.179 is City city greater ETJ of a with a population special unconstitutional local or law be- than five thousand. WateR Code the underlying purpose cause it violates 26.179(c), (d).6 applies Section 26.179 56, prevent of section which is to (1) a municipality when either: enacted or special granting of and the privileges attempted to enforce three or more ordi- interests, personal trading votes see nances or attempting reg- amendments 945, Run, Maple and be- 931 S.W.2d ulate water or or control abate cause it test fails the the Court relied pollution years pre- within the five upon that purpose. Specifically, to foster (June ceding the effective date of the Act (1) City that: argues laws define 16, 1995), (2) attempts or enacts or city only class of one are constitutional enforce three or more such ordinances or interest, they if advance statewide any five-year amendments in Id. period. (2) not; section 26.179 does 26.179(c). of Austin main- enough is not broad a substan- include tains, dispute without from the landown- class; (3) tial section 26.179’sclassification ers, city that Austin is the only that fell reasonably is not related to statute’s within section 26.179’s classifications when alleged purpose ensuring regulatory passed it was Legislature, and that certainty or providing regulatory flex- Austin is the that falls within ibility necessary to develop- facilitate land today. these classifications (4) ment; legislative section 26.179’s histo- v. Maple Run Monaghan, Court unconstitutional; ry it demonstrates is recognized Legislature’s broad “the au (5) provi- section 26.179’s substantive thority to legisla make classifications for sions reasonably are not related to its al- 941, (Tex. purposes.” tive 931 S.W.2d leged purpose. 1996) (citing County, Miller v. El Paso 370, (1941)). In considering these arguments, must To presumed determine whether a law that is limited the Legislature be has not a particular locality general class or arbitrarily unreasonably. acted or is an special Davis, (Tex. or unconstitutional or local Smith v. 426 S.W.2d 1968). law: presumed It Legis is also that the correctly appreci ... lature “understands and “[T]he classification must be based legitimately people, characteristics distin- ates the of its own needs its guishing class from problems [the] others laws are directed to made mani respect public purpose sought by experience, fest and that its discrimina- accomplished by the proposed legisla- upon grounds.” tions are adequate based tion.” primary “The and ultimate test (quoting Armory Id. Texas Nat’l Guard a law is general special whether McCraw, Bd. 132 Tex. 126 S.W.2d whether there is a reasonable basis for 627, (1939)). A mere difference law, the classification made opinion on the matter is sufficient operates whether the law on all equally striking legislation basis for down as arbi within the class.” unreasonable, trary and because “[t]he (citations Run, Maple law is the expediency 931 S.W.2d at 945 wisdom omitted). Legislature’s prerogative, This test ensures that clas- not ours.” Id. principal aquifer 6. Section does not the ETJ of tion of an that is the sole 900,000 city. drinking a with more than citizens that water source for that Tex Wa- 26.179(n). passed prevent pollu- the an ordinance to ter Code 910 the City upheld

A asserts that Court the at in that “because it statute issue case City argues The that Texas has first impor- concerned matter of a statewide consistently a rule that statutes applied tance.” That assertion does not necessari- defining a class of one are constitutional support that a statute is unconsti- ly a rule if they advance a interest. statewide matter tutional it concerns a of unless contention, support City the To this cites Furthermore, importance. this statewide Run, 947; at Maple County 931 S.W.2d of County Court stated Cameron —simi- Wilson, 25, v. 160 Tex. Cameron of to its Run —that Maple lar statement Miller, (1959); S.W.2d 165-67 general a deals a whether statute 1002-03; v. City Irving at S.W.2d of important rather than local interest “an Bd., is Int’l Airport Worth Dallas/Fort consideration,” “the primary but and ulti- (Tex.App. Worth S.W.2d — Fort denied). test a mate is whether there is reasonable But fail to writ cases these basis for classification and whether the the support its contention. operates law on all within the equally Run, le- Maple this Court found no Cameron, 326 S.W.2d at County class.” why reason the chose gitimate 165. confining at is- a classification the statute municipal utility to a district. single sue fails County Miller v. El also Paso Run, Maple 931 S.W.2d at 946-47. City urges. the that the support rule the local The statute thus failed traditional in Miller City contends that Court special law test. The statute’s defend- it limited struck down a statute its because argued ers that the otherwise unconstitu- county. effect one The case reveals af- stand it tional statute should because that the Court struck down the statute not conservation, matter of fected a reason, that attempt- but because “the interest. See id. at 947. The statewide ed classification unreasonable and [was] City response relies on the Court’s that sought objects no relation to [bore] all agree we Texans have “[w]hile Miller, accomplished by be the Act.” protecting interest natural State’s Again ultimate and resources, may sim- disagree we that one dispositive inquiry was whether classi- having law plistically conclude reasonably pur- to a fication related was ipso is facto not a purpose conservation by the statute. pose advanced City’s Id. reli- special local or law.” City Similarly, City’s reliance on on this is for two misplaced ance statement case, In that Irving misplaced. First, was reasons. the Court’s statement argument court of relied on appeals essentially that an unconstitu- otherwise arbitrary classifica- statute with an merely be tional statute cannot saved if can tion nonetheless constitutional fact that affects a matter the statute importance. affects matter of statewide That does statewide interest. statement at 467. As Irving, 894 S.W.2d very asser- support City’s different above, not neces- that rationale does stated a matter of that a statute must affect tion City urges. sarily support rule that the to be constitutional. statewide interest Second, “the ulti- Maple Run held that rejected this Court importantly, Most III, question mate under article section 56 Run, City’s Maple ex- argument basis for there is a reasonable is whether question the ultimate plaining classification,” and that Legislature’s for the a reasonable basis whether there is subject matter is significance signifi- classification and Legislature’s factor, factor, merely a albeit substantial subject matter is cance of the statute’s Id. that reasonableness. determining determining merely an factor in important Run, Maple reasonableness. County does Cameron Wilson Nor at 947. City’s proposed rule. The S.W.2d support

911 Cameron, 945; support Because there no for the 326 S.W.2d at County is Wood, 201, City’s 164; contention that Texas courts have v. 137 Tex. 152 Anderson (1941). 1084, applied “consistently ap- Unfortunately, less S.W.2d 1087 —much rule that plied” one-member classes are reading a selective of Texas courts’ unusu- —a 7 they only if advance a appropriate state- al to a “broad” or “substantial reference interest, reject I City’s wide would impression mistaken give class” could argument first and adhere to the rule re- III, 56 requires that article section that in Maple cited the ultimate in- Run that legislation minimum num- affect a certain quiry is whether is a there reásonable persons ber of or entities. classification; for basis whether the greater But the of this expanse Court’s statute advances a statewide interest special jurisprudence local and reveals law merely making factor in that inquiry. that an inquiry substantiality into the of a class from the cannot be divorced reason- B ableness of the lines drawn to form that Run, Maple In quoted this Court Instead, primary class. and ultimate fifty-eight-year-old proposition that “where inquiry is and has been the reasonableness ... a law affects inhabitants of a of the lines a draws and whether statute locality, particular ‘the classification must operates equally the statute on all within broad enough be to include a substantial See, Run, the class. e.g., Maple 931 class and must be based characteristics 945, Cameron, 947; at County S.W.2d legitimately distinguishing such class from 165; Gonzales, Rodriguez at v. 326 S.W.2d respect others with public purpose (1950). 537, 791, 148 Tex. 227 S.W.2d 793 sought to accomplished by be the proposed ” Our that cases demonstrate a class is “sub- Run, legislation.’ Maple 931 S.W.2d is big, stantial” not because it but because Miller, (quoting 945 150 S.W.2d at 1001- it is delimited reasonable distinctions 02). part invokes of this lan- respond to real substantial differ- guage arguing that section 26.179’sclas- ences. sification “is not enough ‘broad include class,’ substantial required as when a stat- Miller, Amerman, Before v. in O’Brien ” applies only ute ‘particular locality.’ to a 270, 254, (1922), 112 Tex. 247 271 S.W. argument That be could understood to Court grounds referred to “substantial presuppose that language the Court’s cre- the classification.” And two weeks before apart usual requirement ates — Miller, we decided we issued Friedman v. that a classification be reasonable —a dis- Co., 149, American 137 Tex. Surety 151 requirement crete statute be broad 570, (1941), in 577 which we stated “ enough to include a substantial class. must [classifications be based on a difference, That supposition misguided. having would be real and substantial re- 1941, In Miller subject particular first referred to a “sub- lation to the enact- Miller, stantial class.” If ground S.W.2d at ment. there is a reasonable classification, In subsequent 1001. cases we have operates re- law n class, quoted equally stated Miller statement of the on all within the same it will See, Run, law. e.g., Maple 931 S.W.2d at held valid.”8 Montclair, 426, challenged special legislation State v. er 7. Town 67 N.J.L. a statute (1902) A. is one of the few cases equal protection” guaranty or under the beyond Texas that to a refers “substantial though even relation close between "[t]he class.” prohibitions these ... has seldom been em phasized.” Singer, Statutory Sutherland Friedman, challenge actually 8. was th ed.1993); (5 see also Construction equal rights based on the Texas Constitution’s Carter, Coming Owens 997 S.W.2d I, provision, article section rather than on (Tex.1999) (holding a statute did not vio III, Nevertheless, article “[t]he III, late article for the same rea govern same considerations decisions wheth 912 or or regulate quality control inquiry that an

Miller itself makes clear pollution in with- a is ulti- abate water the area substantiality into the of class years in the effec- preceding into reason- the five mately inquiry of an part Act, tive whether or not portion The date ableness of classification. were a “sub- such ordinances or amendments that first refers to opinion area; or legally upon effective stantial class” states (2) legislation attempts must be intended to or to enforce enacts may to all come within uniformly who or more or amend- three ordinances Act, designated attempting regulate classification thereto ments and the classification must be broad wa- or control or abate enough to include a substantial class and five- ter in the area in pollution legiti- on must based characteristics or not ordi- year period, be whether such from mately distinguishing such class ef- legally nances or amendments are respect public pur- others the area. upon fective accomplished by the pose sought to be 26.179(c). City The Tex. WateR Code words, proposed legislation. challenges 26.179’sthree-ordi- both section be a reason there must substantial population- and its nance demarcation the classification. based classification. Miller, (emphasis at 1001-02 150 S.W.2d is purpose The stated of section 26.179 added). flexibility necessary to de “provide Run, And Court made this Maple of certain velop [within the land ETJ that “the ultimate explicit by explaining non-deg municipalities] ensuring the while III, 56 question under article section area.” within the radation of for the whether there is reasonable basis Comm, RESOURCES, Bill on NatuRAl Senate th Legislature’s [T]he classification.... 1017, Leg., 74 R.S. Tex. S.B. Analysis, legisla- number affected persons Comm, (1995); Re on Natural House factors, merely important tion are albeit Analysis, souRCEs, S.B. Bill n ones, determining reasonableness.” (1995); also R.S. see Leg., 74 Water Run, Maple (emphasis 931 947 26.179(d). testimony Legislative original). suggest purpose also related debate reg developers with providing would-be C consistency stability, certainty, or ulatory “regulatory chaos.” and relief argues also House Hearing Tex. H.B. reasonably not 26.179’s classifications are Before th Comm, Resources, Leg., on Natural alleged purposes of related to the statute’s 1995) (statement (April 1-2 R.S. certainty regulatory providing ensuring Lewis); Hearing on Tex. S.B. Rep. to fos- regulatory flexibility necessary Comm, Re on Natural 26.179(c) Senate development. Section ter land Before sources, 4,1995); 2-3 Leg., (April 74th R.S. following classifications: provides the on the Floor of Tex. S.B. 1017 Debate on only those areas applies This section th Senate, Leg., (April R.S. jurisdiction, the extraterritorial within 1995). are, course, legitimate These munici- corporate limits outside legislation. objectives for greater than population pality with 5,000, ei- municipality and which limiting classification ther: en- cities that have application to 26.179’s

(1) attempted to enforce three acted or to en- attempted has enacted or regulat- or amendments or more ordinances or more ordinances force three legiti- five years ing within attempting thereto amendments Clause). Equal Protection not violate the sons it did enacting trig- enforcing cities with ordinance mately distinguishes between respect objectives. This applica- these classifi- gers section 26.179 insofar cation tailored. It may perfectly not water-quality changed. standards are ble Legisla- be wise. not even But trig- Accordingly, section arbitrary ture was or unreasonable in not enforcing gered by City’s a three simply deciding enforcing enacting that or three stan- long-standing ordinances because or municipal water-quality more different changed. It not arbi- dards are not is five-year in can period standards a inter- Legislature trary or for the unreasonable necessary flexibility fere with “the to de- applying or more determine that three velop or uncertainty the land” result in the water-quality five-year pe- in a standards was designed section 26.179 to combat. uncertainty hampers riod could cause that argues that City the classification plans development, a for landowner’s is, effect, in is unreasonable because it in whether the or not overbroad: a could fall within the to the landowner. applied end merely attempting classification for to en- noted, not that necessary As it is ordinances, longstanding force three legislation a matter statewide enacting ordinances advance of against not enforced landowners, enacting interest, non-substantive signifi- but it does is a whether so ordinances, water-quality enacting or for determining cant factor in whether legally ordinances that never become ef- Legislature’s classifications are reasonable. fective. I find irony City’s some in the addition, substantiality the class of argument statute can unconsti- (ie., persons by number affected tutionally special local because its clas- legislation) must be considered evaluat- sification is too broad general. More- ing the classifica- reasonableness over, City’s interpretation of section Promoting development tions. un- without application erroneously 26.179’s is over- necessary regulatory chaos is a matter of 26.179, trigger broad: section City See, e.g., statewide interest. Tex. Watee must enact enforce or three different ordi- (“It policy 26.003 this attempting regulate quali- nances ... state to maintain ty or abate pollution control or —so in the state consistent with ... the eco- there are three different standards state_”). nomic Al- development governing quality during a five- — currently though affects section year period. The legislative history indi- Austin, only City City admits cates primarily was class, “open” that section 26.179 creates an concerned a City’s changing with water- which will include other choose cities who quality standards so that three or more water-quality to enact ordi- additional different apply during standards would City possibility nances. The raises the any five-year period. be- may that other enact new cities hesitate to lieved that application of three more water-quality ordinances the future to water-quality different standards a five- falling this than avoid into class. Rather year period regulatory would lead to section militating against 26.179’s reason- chaos in turn develop- that would hinder ableness, possibility this demonstrates Accordingly, ment. consistent reasonably section classification intent, 26.179’s legislative I would construe section Thus, purpose. I advances the statute’s applying City 26.179 as when a enacts or section’s three- would hold that 26.179’s water-quality enforces three different or- Thus, dinances a five-year period.9 within ordinance is reasonable. classification years example, City when a one two For enforces ordi- then enacts another ordinance later, years applied three nance for two and then enacts new it has different standards ordinance, applied period, five-year stan- within a and section 26.179 it has two different enacted, dards, triggered. one if the enforced one 914 26.179(c)’s Nevertheless, “a must judiciary

I hold that ETJ. would also results, by varied factors judge a reasonable population classification has legislators’ sec which have determined Legislature passed When the basis. 1995, Family required Ins. votes.” Daniel Sec. tion 26.179 Life Co., 224, 550, 220, than 93 populations greater U.S. S.Ct. cities with (1949). water-pollution- establish L.Ed. 632 five thousand to programs. See Act control and abatement City acknowledges, improp- “[a]n As 612, 1971, R.S., ch. May Leg., 62d ... legislative taint er motive cannot 1974, 1980, 7,§ 1971 Tex. Gen. Laws id. otherwise constitutional statute.” Cf. 5,1997, Leg., May Act of amended (“[A cannot court] S.Ct. R.S., 5,§ ch. Laws Tex. Gen. testing undertake search for motive (section provides 26.177 now that Moreover, if even constitutionality.”). 10,000 to required cities of or more are the legislators intended Act to some if water-quality program establish a direct ETJ, fact that the to Austin’s the remains TNRCC). pro by ed to do so the These all subjects Act Texas towns potentially include in the cities’ grams could areas population a of five thousand with 26.177(b). ETJs. See Tex. WateR Code greater application. to its Legisla It was unreasonable for the not option only provide ture to section 26.179’s E that section in the ETJs of the cities only Finally, City argues that “[n]ot the plans. 26.177 to required implement un- section 26.179’sclassification scheme is Moreover, popu person the five-thousand avoiding regula- purpose related to the distinguishes between lation threshold chaos, is tory practical application but its larger half-mile small with ETJs cities Ap- purpose.” likewise unrelated to this to ranging cities with from one five ETJs City arguing the is that section parently, miles. not the Loc. 26.179’s substance could advance Gov’t 42.021(l)-(5). In a a population suggested, so the Court must look purpose inhabitants, five of fewer than thousand a the another as basis for purpose for one- necessarily the within zone would be wrong. This assertion is classification. boundaries, city’s mile while it half least, developer at form- For the would-be city’s larger miles a may up be to five from zone will ing water-quality-protection Legislature The could have boundaries. certainty likely provide regulatory more necessary that it was reasonably believed flexibility necessary to the “provide cities from exempt the state’s smallest previously sub- the in areas develop land” dispropor it because would section 26.179 be- changing standards ject numerous regulate tionately only affect their subject will be cause landowner adjacent quality immediately in section 26.179. detailed the standards their boundaries. IV

D section argument its In addition to to sus- argues that section City private further 26.179 allows zone, history by designating it as an exposes certain laws legislative pend 26.179’s that, Legisla- City law. even if the local and To the contends special unconstitutional sure, suspend- rather the landowners reveals that ture than legislative history zones, within the City’s regulations ed the Properties’ experience FM Austin’s ETJ because in unconstitutional suspension is legislators some prompted at least local, See, Interpretive e.g., general. it is section 26.179. pass troduce and I, Commentary section 28 states to article the Floor of Debate on Tex. S.B. 1017 on th ..., except prohibits “any person Senate, (April Leg., R.S. 1-9 aside the 1995). Legislature, setting indeed, classi 26.179’s And section sus- law,”» and even when intended to include Austin’s fication was law, assuming “it But does in pends suspen- must make the even general, sion and cannot suspend right [the law] fact section have a vested affected for cases or particular 26.179, individual locali- City’s argument fails. The Const, I, § ties.” interp. art. City contends that section 26.179’sretroac- (Vernon 1997). I commentary would re- impairment rights tive of its unconstitu- ject City’s argument suspen- that the “special tional 26.179 because section sion is local the same reasons that I designed interest statute to assist would section is not a hold that 26.179 local City’s ETJ” and developers within special law. not enact therefore the did part a valid exercise of as V police safeguard public The City argues also that section 26.179 safety and argument welfare. This fails violates the Home Rule Amendment be- law, because 26.179 is not special cause its home-rule as annex- such but is a police power valid exercise ation be curtailed state’s safeguard welfare. safety general The City laws. contends that sec- tion is a special local or law that and, City’s limits power, annexation sum, I disagree because with the such, it violates Home Rule Amend- Court’s conclusion section 26.179 is again,

ment. argument Once because because I unconstitutional is simply City’s a reiteration of allega- would hold that section does tion that section 26.179 is an unconstitu- violate the provisions other constitutional law, special tional reject local or I would it City, I respectfully asserted dis- grounds. on the same sent. VI

Finally, City argues that section I,

26.179 violates article prohi- section 16’s

bition against retroactive laws. See

Const, I, (“No attainder, art. bill of law, post law,

ex facto retroactive impairing contracts,

law obligation made.”).

shall be A statute retroactive

if it away takes or impairs party’s vested

rights under acquired existing law. City Likes, Tyler 962 S.W.2d

of (Tex.1997). City alleges that section retroactively impairs its vested

rights City may longer because the no water-quality

enforce and other ordinances its right exercise of eminent domain

within of its designated areas ETJ

zones.

First, City attempt makes no authority

demonstrate how its to enforce land-use,

water-quality, ordi- right.

nances within its ETJ is a vested noted, authority only

As has such grant

because the chose to place. City’s the first continued regulate

authority to ETJ is at all subject Legislature.

times to the will

Case Details

Case Name: FM Properties Operating Co. v. City of Austin

Court Name: Texas Supreme Court

Date Published: Aug 24, 2000

Citation: 22 S.W.3d 868

Docket Number: 98-0685

Court Abbreviation: Tex.