LONE STAR GROUNDWATER CONSERVATION DISTRICT, Richard J. Tramm, Sam W. Baker, M. Scott Weisinger, Jim Stinson, John D. Bleyl, Jace Houston, Roy McCoy Jr., Rick Moffatt, and W.B. Wood, Appellants v. CITY OF CONROE, Texas, Quadvest, L.P., Woodland Oaks Utility, L.P., Crystal Springs Water Co., Inc., Everett Square, Inc., E.S. Water Consolidators, Inc., Utilities Investment Co., Inc., and T & W Water Service Company, Appellees
NO. 09-16-00201-CV
Court of Appeals of Texas, Beaumont.
Opinion Delivered February 2, 2017
Submitted on September 15, 2016
HOLLIS HORTON, Justice
VI. Conclusion
In conclusion, the trial court erred in considering the Rule 404(b) notice that was not offered or admitted into evidence at the sentencing hearing. Yet, for all of the foregoing reasons, I believe that the trial court‘s error in this case was not fundamental, was not constitutional, and under Rule 44.2(b), was not harmful. Therefore, I respectfully dissent.
sence of any information indicating missing information was incorrect.
Nevertheless, my dissent should not be read as an endorsement of the sentencing hearing in this case. The trial court erred in considering the Rule 404(b) notices because they were not admitted into evidence. Due to the factors listed, and particularly the fact that the trial court did not consider any of the unadjudicated extraneous offenses contained in the notice, I believe the trial court‘s error was harmless. See Tamminen v. State, 653 S.W.2d 799 (Tex. Crim. App. 1983) (holding that no due process violation requiring new trial occurred despite trial court‘s ex parte receipt of Texas Department of Public Safety Report detailing activities of motorcycle gang to which the defendant belonged and which mentioned the defendant—even though the report was provided to the trial court by the State‘s attorney who informed the trial court the report was classified, was not available to the public, and was not provided to defense counsel—where the trial court stated at sentencing that he was basing his sentencing decision solely on the testimony by the complaining witnesses during the guilt/innocence phase of trial and nothing else). Yet, it is difficult to imagine a set of facts outside the present case where I would make the same conclusion.
Michael V. Powell, Jason R. Marlin, Amanda L. Cottrell, Locke Lord, LLP, Dallas, Marvin W. Jones, C. Brantley Jones, Sprouse Shrader Smith PLLC, Amarillo, Ramon G. Viada III, Viada and Strayer, The Woodlands, for Appellees.
Before McKeithen, C.J., Horton and Johnson, JJ.
HOLLIS HORTON, Justice
In this interlocutory appeal, the Lone Star Groundwater Conservation District1 and its Directors seek appellate review of orders overruling their pleas to the jurisdiction. In their pleas, the District and the District‘s directors challenged the trial court‘s power to decide the claims of several “Large Water Producers,”2 who sued the District and its directors because the District was threatening to enforce groundwater production rules that the Large Water Producers asserted in the suit were invalid. According to the Large Water Producers, the rules they challenge are invalid because they attempt to regulate the production of groundwater in ways the Legislature never authorized.
While the Large Water Producers’ petition includes claims that the pleas did not address, this appeal, with respect to the District, concerns the Large Water Producers’ challenge to the validity of the District‘s rules that placed limits on the volume of groundwater that each Large Water Producer was allowed to produce on a yearly basis from its wells. See
In response to the petition, the District asserted that while the Declaratory Judgments Act generally authorizes courts to consider challenges asserting that a statute or ordinance is invalid, it claimed the Act did not authorize the courts to consider complaints about the validity of a governmental entity‘s rules. See
The Directors’ plea asserted that they were immune from all of the claims the Large Water Producers were making in their suit. According to the Directors, because the Large Water Producers’ claims all concern their votes on rules adopted by the District, the Water Code immunized them from the claims which were all based on their official votes or actions. See
With respect to the arguments the Directors raise in their appeal, we agree that the Large Water Producers’ claims are based entirely on the votes the directors cast on the rules the Large Water Producers have challenged in their suit. Because the Water Code immunizes directors of groundwater districts from claims that are based on their votes as directors, we hold that the trial court abused its discretion when it denied the Directors’ pleas.
With respect to the District‘s appeal, we conclude that the Texas Water Code expressly authorizes courts to consider challenges that concern the validity of a groundwater district‘s rules. We further conclude that the Legislature, in the Water Code, expressly authorized the courts to remedy a successful challenge to the validity of a groundwater district‘s rules by declaring the groundwater district‘s rules invalid. See
Background
The Large Water Producers consists of several private and public entities that produce groundwater from wells in Montgomery County. In 2015, dissatisfied with the production limits the District created through the rulemaking authority delegated to it by the Legislature, the Large Water Producers filed suit claiming that the rules the District created imposing per-producer yearly production limits on their production of groundwater were invalid because they purported to regulate the production of groundwater in ways the Legislature never authorized.
In response to the suit, the District and the Directors filed pleas to the jurisdiction. We note that all of the claims against the Directors were brought against them in their official capacities as members of the District‘s board. We further note that for the purpose of this appeal, the Plaintiffs’ Fourth Amended Petition3 is the petition
Approximately six months after the suit was filed, the trial court conducted a hearing on the pleas. Three months after the hearing, the trial court denied both pleas, concluding that it possessed subject-matter jurisdiction over all of the claims before the court. The District and Directors then filed timely interlocutory appeals from the trial court‘s orders denying their pleas. See
Standard of Review
As a dilatory plea, a plea to the jurisdiction is used to defeat a plaintiff‘s cause of action without regard to whether the plaintiff‘s claims have merit. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Generally, unless there is a statute waiving a governmental entity‘s right to governmental immunity or a claim that the government took the defendant‘s property, trial courts lack subject-matter jurisdiction to hear suits that involve claims filed against governmental entities. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 403 (Tex. 1997); Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980). Given that governmental entities and their officials are generally immune from suit, a plaintiff, when suing a governmental entity and its officials, must file pleadings that “affirmatively demonstrate the court‘s jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). The purpose of requiring that the pleadings demonstrate how a trial court possesses the right to hear the case exists so that the trial court can be informed regarding the basis of the plaintiff‘s claim regarding how it can exercise subject-matter jurisdiction over the claims that have been filed in the suit. See Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).
On appeal, unless the jurisdictional facts are disputed, an appellate court reviews a trial court‘s ruling on a plea to the jurisdiction as a question of law. See Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). In appeals where the jurisdictional facts are not in dispute, we apply a de novo standard in reviewing an appeal from a trial court‘s ruling. Id. When reviewing a ruling on a plea to the jurisdiction, we determine whether the pleadings before the trial court contained sufficient factual allegations to allow the trial court to determine that it had jurisdiction over the dispute. Id. In reviewing the facts the plaintiff chose to allege in its pleadings, we are not to weigh whether the plaintiff‘s claims have merit; instead, we are to determine whether the pleadings and the evidence before the trial court sufficiently demonstrated that the trial court could properly exercise jurisdiction over the claims in dis-
The trial court‘s resolution of the District‘s and the Directors’ pleas relied principally on the trial court‘s interpretation of the Texas Water Code and the Declaratory Judgments Act. See
Governmental Immunity—The District
In their suit, the Large Water Producers challenged the validity of various rules that the District adopted to govern the production of groundwater from wells in Montgomery County. The Large Water Producers claimed that the rules they challenged regulating the volume of groundwater that each could produce on a per annum basis were invalid because the groundwater districts, while authorized to create rules that regulated groundwater production in some way were not authorized to regulate in the manner the District had chosen to regulate groundwater production through its rules. In response to the petition, the District asserted that the Declaratory Judgments Act did not waive its immunity because the Declaratory Judgments Act applies to claims challenging the validity of statutes, but not to rules. In this appeal, we note that the District has not challenged the claims the Large Water Producers made to its rules regulating groundwater production under section 36.251 of the Texas Water Code. See
Generally, the doctrine of governmental immunity includes the concept that a governmental entity is immune from liability and immune from suit. See Lubbock Cty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006)). Like other governmental entities, groundwater districts have governmental immunity unless the Legislature has waived the district‘s right to governmental immunity. See
In its appeal, the District argues that under the Declaratory Judgments Act, (1) it remains immune from the Large Water Producers’ ultra vires claims; (2) the Declaratory Judgments Act does not authorize declaratory relief with respect to challenges to a governmental entity‘s rules; and (3) the Declaratory Judgments Act does not waive a groundwater district‘s immunity with respect to claims for attorney‘s fees. In response to the District‘s arguments, the Large Water Producers argue that (1) the Texas Water Code allows parties challenging a groundwater district‘s rules to rely on other statutes such as the Declaratory Judgments Act where they apply to the action; (2) the Declaratory Judgments Act operates as a waiver concerning the Large Water Producers’ claims that the District‘s rules they were challenging were invalid; and (3) groundwater districts are not immune from claims for attorney‘s fees because the Declaratory Judgments Act provides that a trial court may award attorney‘s fees and the Water Code provides that its provisions are cumulative of other remedies.
First, we address the Large Water Producers’ argument that the Declaratory Judgments Act waived the District‘s right to governmental immunity with respect to the challenge the Large Water Producers had made to the validity of the District‘s rules. Generally, we observe that the Declaratory Judgments Act is not a statute that courts have construed as the type of statute that waives a governmental entity‘s immunity from suit. See Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015); City of El Paso v. Heinrich, 284 S.W.3d 366, 373 (Tex. 2009). Nevertheless, the Large Water Producers’ argument does not depend solely on the Declaratory Judgments Act, as their pleadings alleged that the Water Code authorized the trial court to hear their claims challenging the District‘s rules. See
(a) A person, firm, corporation, or association of persons affected by and dissatisfied with any rule or order made by a district, including an appeal of a decision on a permit application, is entitled to file a suit against the district or its directors to challenge the validity of the law, rule, or order.
(b) Only the district, the applicant, and parties to a contested case hearing may participate in an appeal of a decision on the application that was the subject of that contested case hearing. An appeal of a decision on a permit application must include the applicant as a necessary party.
(c) The suit shall be filed in a court of competent jurisdiction in any county in which the district or any part of the district is located. The suit may only be filed after all administrative appeals to the district are final.
According to the Large Water Producers, the Declaratory Judgments Act waives
The District also argues that the Declaratory Judgments Act does not apply to challenges to the validity of a groundwater district‘s rules, and that the Act is limited to challenges that are made to the validity of statutes and ordinances. Compare
In issue three, the District argues that the trial court does not possess subject-matter jurisdiction over the Large Water Producers’ claim for attorney‘s fees. In their brief, the Large Water Producers argue that the Declaratory Judgments Act authorizes courts to award a party that successfully obtains declaratory relief attorney‘s fees. In response, the District argues that neither the Texas Water Code nor the Declaratory Judgments Act include an express waiver of governmental immunity with respect to claims for attorney‘s fees.
Section 37.009 of the Declaratory Judgments Act authorizes courts to award attorney‘s fees in declaratory judgment actions.
In its brief, the District points out that a party who successfully challenges the validity of a groundwater district‘s rules under the provisions of the Texas Water Code is not authorized to recover attorney‘s fees. See
While the Water Code generally authorizes Texas courts to hear a party‘s challenge to the validity of a groundwater district‘s rules, the Water Code does not authorize a party that prevails on such a challenge to recover attorney‘s fees. See
The Large Water Producers suggest that by making the Water Code cumulative of other remedies, the Legislature intended to allow a party that successfully challenged a groundwater district‘s rules to recover the attorney‘s fees it incurred in its action even though it did not authorize such a recovery within the Water Code. See
We conclude that the Large Water Producers failed to allege a valid basis to demonstrate that the trial court could properly exercise subject-matter jurisdiction over the Large Water Producers’ claims for attorney‘s fees. We hold the trial court erred when it denied the District‘s plea with respect to the claim the Large Water Producers filed for attorney‘s fees.
We further conclude that the Large Water Producers’ claim for attorney fees should have been dismissed with prejudice. The record shows that the Large Water Producers amended their pleadings several times before the trial court ruled on the District plea, and they have not, in the appeal, explained how their pleadings could be amended to demonstrate that the trial court could hear their claims seeking to recover fees. Consequently, their claims for attorney‘s fees must be dismissed, with prejudice. See Sykes, 136 S.W.3d at 639 (requiring that an order granting a plea to the jurisdiction dismiss the claim with prejudice where the plaintiffs’ pleadings cannot be amended to cure the defect that bars the suit);
Official Immunity—The Directors
The claims the Large Water Producers filed against the Directors were all based solely on their duties as members of the groundwater district‘s board. Additionally, as to the Directors, the Large Water Producers’ claims were based on the Directors’ votes to pass rules the Large Water Producers claimed were outside the authority the Legislature extended to groundwater districts to regulate the production of groundwater.
After they were sued, the Directors challenged whether the trial court could hear the claims against them by filing a plea to the jurisdiction. The plea the Directors filed asserts that section 36.066(a) of the Water Code immunized them as board members of a groundwater district from being sued for their official votes and actions as members of the District‘s board. See
Section 36.066(a) of the Texas Water Code provides:
A district may sue and be sued in the courts of this state in the name of the district by and through its board. A district board member is immune from suit and immune from liability for official votes and official actions. To the extent an official vote or official action conforms to laws relating to conflicts of interest, abuse of office, or constitutional obligations, this subsection provides immunity for those actions. All courts shall take judicial notice of the creation of the district and of its boundaries.
On appeal, the Directors argue that the trial court‘s denial of their plea should be
In its brief, the Large Water Producers argue that section 36.066(a) of the Water Code should be construed as a limited grant of immunity to the directors when they are sued in their personal capacities, but that it should not be construed as a grant of immunity if a groundwater district director is sued in the director‘s official capacity for exceeding the authority granted to directors by the Legislature to regulate groundwater. To resolve the scope of the immunity the Legislature extended to the members of a groundwater district‘s board, we must construe the language the Legislature chose to use in section 36.066(a) of the Texas Water Code.
We apply a de novo standard to review the trial court‘s conclusion that the Directors were not immune from the Large Water Producers’ claims asserting that they had passed rules that exceeded the authority extended to them by the Legislature to regulate the production of groundwater. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). When a statute is unambiguous, the words used in the statute are to be given their common meaning. See Nat‘l Liab. & Fire Ins. Co., 15 S.W.3d at 527; Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). Additionally, the Water Code provides that the construction of the Water Code should be based on the rules of construction found in Chapter 311 of the Government Code. See
Generally, ultra vires claims involve suits against state officials and are based on the claim that the official‘s acts exceeded the authority the official possessed. See Heinrich, 284 S.W.3d at 373. In cases alleging ultra vires claims, courts have typically viewed the government officials of the entity, not the entity itself, as the proper parties to a claim seeking to have a statute or ordinance declared invalid. See id. at 373, n.6 (recognizing that by requiring the relevant governmental entity to be made a party to a suit seeking a declaratory judgment that an ordinance or statute was invalid, the Declaratory Judgments Act “requires that the relevant governmental entities be made parties, and thereby waives immunity“) (citing
By allowing the validity of a groundwater district‘s rules to be challenged in court, the Legislature expanded the number of suits that groundwater districts and their directors might face. In our opinion, section 36.066(a) of the Water Code simply recognizes the practical reality that a groundwater district‘s officials generally need not be required to be formal parties to such suits. By allowing ultra vires claims that concern the validity of a groundwater district‘s rules to be filed directly against groundwater districts, a groundwater district‘s directors are no longer needed as parties so long as no claim is being made that a director‘s vote did not “conform to laws relating to conflicts of interest, abuse of office, or [the director‘s] constitutional obligations[.]” See
In their pleadings, and in their appeal, the Large Water Producers have not alleged or argued that any of these exceptions to the general rule that a groundwater district‘s directors are immune for their votes apply. While the Large Water Producers argue that the Legislature intended to make directors of groundwater districts immune only in their personal capacities for their votes, we cannot interpret section 36.066(a) so narrowly, as the provision grants directors of groundwater districts immunity for their official votes and actions. Giving the provision such a narrow meaning would effectively make the directors subject to suit for having voted on a groundwater district‘s rules, giving the provision a meaning that is plainly inconsistent with the words the Legislature used in the statute. See Nat‘l Plan Adm‘rs, Inc., 235 S.W.3d at 701.
We also do not agree with the Large Water Producers’ argument that section 36.066(a) gave the directors of groundwater districts unlimited immunity while acting in their official capacities. Section 36.066(a) clarifies that the official board member is immune “[t]o the extent an official vote or official action conforms to laws relating to conflicts of interest, abuse of office, or constitutional obligations[.]”
Reading section 36.066(a) as extending a limited degree of immunity to directors of groundwater districts for voting on rules harmonizes section 36.066(a) with section 36.251, as there are limited circumstances under which a director could be made a party to a suit where the suit involved the director‘s votes or actions. See
In the absence of a claim that the directors of a groundwater district voted while having a conflict of interest, were guilty of abuse of office, or voted in violation of their constitutional obligations they undertook in their oaths, the directors of groundwater districts are immune from actions based on their votes as directors. See
The record shows that the Large Water Producers amended their claims several times before the trial court ruled on the Directors’ plea, and they never alleged that any of the exceptions we have discussed apply to their claims. Therefore, we further conclude that the claims against the Directors should be dismissed, with prejudice. See Sykes, 136 S.W.3d at 639 (requiring that an order granting a plea to the jurisdiction dismiss the defendant, with prejudice, based on its claim of immunity from suit if the record shows that the plaintiff had a reasonable opportunity to amend its pleadings after the defendant filed its plea).7
Conclusion
We hold the Directors established that they were immune from being sued for
With respect to the Large Water Producers’ claims against the District, we affirm the trial court‘s ruling except with respect to the claim for attorney‘s fees. As to the attorney‘s fees claim, the trial court‘s order is reversed and the trial court‘s order is reformed to read as follows: “Upon considering the pleadings, the plea, response and reply, the evidence, and the arguments of counsel, the District‘s plea to the jurisdiction should be granted in part and denied in part. Regarding the Large Water Producers’ claims for attorney‘s fees under section 37.009 of the Civil Practice and Remedies Code, the District‘s plea is granted and the claim for attorney‘s fees is dismissed with prejudice. Otherwise, the District‘s plea is denied.”
AFFIRMED IN PART, REVERSED AND RENDERED IN PART.
HOLLIS HORTON
Justice