i          i        i                                                                    i       i      i




                                                OPINION

                                           No. 04-07-00662-CV

                                PROTOTYPE MACHINE COMPANY,
                                          Appellant

                                                      v.

     Toledo P. BOULWARE, Individually and as Trustee; Dos Angeles, L.P.; Zach and
Kayla Davis; DMC Partners, Ltd.; Willie Jo Dooley, L.P.; Hayden G. Haby and Doris Y. Haby;
  Hayden G. Haby, Jr. and Dennette Haby Coates; Melanie and John Jones in Their Capacity
       as Joint Representatives of The Ben Jones Jr. Estate and Ben Jones Sr. Estate;
   McDaniel Farms, Inc.; Jewel F. Robinson and 4-S Ranch; Kinney County Groundwater
  Conservation District; and Darlene Shahan in Her Capacity as General Manager of Kinney
                         County Groundwater Conservation District;
                                         Appellees

                      From the 63rd Judicial District Court, Kinney County, Texas
                                         Trial Court No. 3469
                          Honorable Mickey R. Pennington, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: April 8, 2009

REVERSED AND REMANDED

           This appeal arises from the trial court’s order striking appellant’s plea in intervention. In an

opinion and judgment dated December 17, 2008, we concluded that because appellant was denied

notice of the motion to strike and an opportunity to be heard on the motion to strike, we must reverse
                                                                                                       04-07-00662-CV

and remand for further proceedings. The appellant and appellees all filed motions for rehearing,

which we deny. However, to address an argument raised by appellees on rehearing, we vacate our

earlier judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place.

                                                 BACKGROUND

         Appellee, Kinney County Groundwater Conservation District (“the District”), regulates

groundwater withdrawals in Kinney County, and issues permits to authorize the continuation of

“historic” and “existing” beneficial, non-wasteful uses of groundwater from the Edwards-Trinity

aquifer. Appellant, Prototype Machine Company (“Prototype”), is a landowner in Kinney County,

Texas and holds a permit to withdraw groundwater. Appellees, Toledo P. Boulware, Individually

and as Trustee; Zach and Kayla Davis; DMC Partners, Ltd.; Willie Jo Dooley, L.P.; Hayden G. Haby

and Doris Y. Haby; Hayden G. Haby, Jr. and Dennette Haby Coates; Melanie and John Jones in

Their Capacity as Joint Representatives of The Ben Jones Jr. Estate and Ben Jones Sr. Estate;

McDaniel Farms, Inc.; Jewel F. Robinson and 4-S Ranch (collectively, “Applicants”) are also

Kinney County landowners and applicants for existing and historic use permits.

         In July 2005, the Applicants sued the District and the District’s former General Manager,

Darlene Shahan, on various causes of action arising out of the District’s administrative permitting

decisions relating to the Applicants’ permit applications.1 After protracted litigation in both state

and federal courts, the District and the Applicants agreed to mediation, which commenced on July


         1
           … The full procedural background of the underlying dispute between the District and the Applicants is set
forth in this court’s opinion in Kinney County Groundwater Conservation Dist. v. Boulware, 238 S.W .3d 452 (Tex.
App.— San Antonio 2007, no pet.). In that case, a panel of this court considered an appeal from the denial of a plea to
the jurisdiction filed by the District and Darlene Shahan. The court affirmed the trial court’s order denying the plea
because the District’s plea to the jurisdiction failed to demonstrate the trial court lacked subject matter jurisdiction.


                                                           -2-
                                                                                      04-07-00662-CV

17, 2007. By August 13, 2007, the parties had reached a settlement agreement on all issues and

prepared an Agreed Final Judgment and Mutual Release of Claims. The District posted notice of

a board meeting to be held on August 16, 2007 at 5:00 p.m., at which time the District’s board of

directors would formally consider approval of the settlement documents. The District’s notice also

stated that the trial court would conduct a hearing at noon on August 17, 2007 to consider the

settlement.

        At approximately 4:30 p.m. on August 16, Prototype filed a plea in intervention, plea to the

jurisdiction, and requests for declaratory relief. At approximately 5:00 p.m. that same day, the

District board meeting commenced. Prototype attended the board meeting and criticized the

settlement. Following public comment, the District’s board approved the settlement.

        On August 17, the District and the Applicants jointly moved to strike Prototype’s plea in

intervention. Prototype did not attend the August 17 hearing, during which the trial court considered

and then granted the motion to strike. At this same hearing, the court also considered the settlement

agreement proposed by the parties, and on September 6, 2007, the court signed the Agreed Final

Judgment. On September 13, 2007, Prototype filed a motion for new trial raising the issue of lack

of notice of the motion to strike. The motion for new trial was overruled by operation of law, and

this appeal ensued. On appeal, Prototype raises a number of complaints, including that the trial court

erred by striking its intervention.

                                          DISCUSSION

        Texas Rule of Civil Procedure 60 provides that “[a]ny party may intervene by filing a

pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.”


                                                 -3-
                                                                                        04-07-00662-CV

TEX . R. CIV . P. 60. A person has the right to intervene if the intervenor could have brought the same

action, or any part thereof, in his own name, or, if the action had been brought against him, he would

be able to defeat recovery, at least in part. Guaranty Fed. Sav. Bank v. Horseshoe Op. Co., 793

S.W.2d 652, 657 (Tex. 1990). An intervenor is not required to secure the trial court’s permission

to intervene; instead, the party who opposes the intervention bears the burden to challenge the

intervention by a motion to strike. Id. Without such a motion, the trial court abuses its discretion

in striking a plea in intervention. Id. After a motion to strike a plea in intervention is filed, the

intervenor should be given an opportunity to explain, and show proof of, his interest in the lawsuit.

Nat’l Union Fire Ins. Co. v. Pennzoil Co., 866 S.W.2d 248, 250 (Tex. App.—Corpus Christi 1993,

no writ).

       Prototype asserts the trial court abused its discretion by granting the motion to strike when

Prototype had no notice of the hearing on the District’s and Applicants’ motion to strike and no

opportunity to respond to the allegations raised in motion to strike. We agree. The Rules of Civil

Procedure require that “[e]very . . . motion . . . to the court for an order, whether in the form of a

motion, plea or other form of request, unless presented during a hearing or trial, shall be filed with

the clerk of the court in writing, shall state the grounds therefor, shall set forth the relief or order

sought, and at the same time a true copy shall be served on all other parties, and shall be noted on

the docket.” See TEX . R. CIV . P. 21. Rule 21 also requires that “[a]n application to the court for an

order and notice of any hearing thereon, not presented during a hearing or trial, shall be served upon

all other parties not less than three days before the time specified for the hearing unless otherwise

provided by these rules or shortened by the court.” Id. Because Prototype did not receive any notice


                                                  -4-
                                                                                                        04-07-00662-CV

of the hearing on the motion to strike, Prototype was denied the opportunity to explain, and show

proof of, its interest, if any, in the lawsuit.2 Therefore, we must reverse the trial court’s order and

remand this cause for further proceedings.



                                                                  Sandee Bryan Marion, Justice




         2
           … On rehearing, appellees argue an intervenor, such as Prototype, takes a suit as it finds it; therefore, when
Prototype filed its intervention on the eve of the August 17 hearing, it did so subject to the existing court calendar. The
appellees conclude that Texas Rule of Civil Procedure 21 therefore allowed them to move to strike the intervention
during the August 17 hearing without prior notice to Prototype. On this record, we cannot agree with appellees. The
clerk’s record on appeal does not contain any scheduling order or other notice from the trial court that a hearing was set
for August 17, 2007. Nor does the trial court’s docket contain any indication that such a hearing would be held.



                                                            -5-
