                                                                                           ACCEPTED
                                                                                       03-16-00214-CV
                                                                                             10956428
                                                                            THIRD COURT OF APPEALS
                                                                                       AUSTIN, TEXAS
                                                                                   6/3/2016 9:53:23 AM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK

                             No. 03-16-00214-CV

                                                                       FILED IN
                                                                3rd COURT OF APPEALS
                                 IN THE                             AUSTIN, TEXAS
                           COURT OF APPEALS                     6/3/2016 9:53:23 AM
                                FOR THE                           JEFFREY D. KYLE
                                                                        Clerk
                        THIRD DISTRICT OF TEXAS


               CHISHOLM TRAIL SUD STAKEHOLDERS GROUP,
                                                    Appellant,
                                       v.
CHISHOLM TRAIL SPECIAL UTILITY DISTRICT, AND DISTRICT
DIRECTORS DELTON ROBINSON, ED PASTOR, MIKE SWEENEY, JAMES
PLETCHER, ROBERT KOSTKA, DAVID MASERANG, GARY GOODMAN,
AND ROBERT JOHNSON, JR.; THE PUBLIC UTILITY COMMISSION OF
TEXAS; ET AL.,
                                               Appellees.


                    From the 419th Judicial District Court of
                            Travis County, Texas


                           APPELLANT'S BRIEF


                     ORAL ARGUMENT REQUESTED

                                            James P. Allison
                                            SBN: 01090000
                                            j.allison@allison-bass.com
                                            ALLISON, BASS & MAGEE, LLP
                                            A.O. Watson House
                                            402 W. 12th Street
                                            Austin, Texas 78701
                                            (512) 482-0701 telephone
                                            (512) 480-0902 facsimile

Appellant's Brief                                                           Page 1
                    IDENTITY OF PARTIES & COUNSEL
        Appellants certify that the following is a complete list of the parties, the

attorneys, and any other person who has any interest in the outcome of this lawsuit:

Appellant:

Chisholm Trail SUD Stakeholders Group.

Counsel for Appellants:

James P. Allison
SBN: 01090000
j.allison @allison-bass.com
J. Eric Magee
SBN: 24007585
e.magee @allison-bass.com
Phillip Ledbetter
SBN: 24041316
p.ledbetter@allison-bass.com
ALLISON, BASS & MAGEE, LLP
A.O. Watson House
402 W. 12th Street
Austin, Texas 78701
(512) 482-0701 telephone
(512) 480-0902 facsimile


Appellees:

Chisholm Trail Special Utility District ("CTSUD")

CTSUD Directors:
    Delton Robinson,
    C.E. ("Ed") Pastor,
    Mike Sweeney,
    Robert Kotska,
    James Pletcher,

Appellant's Brief                                                             Page 2
       David Maserang,
       Pat Gower,
       Gary Goodman, and
       Robert Johnson, Jr.,
       In their official capacities

The Public Utility Commission of Texas ("PUC")

PUC Commissioners:
     Donna L. Nelson,
     Kenneth W. Anderson, Jr., and
     Bandy Marty Marquez
     In their official capacities.

The City of Georgetown, Texas


Counsel for Appellees:

Jose E. De La Fuente
SBN: 00793605
jdelafuente@lglawfinn.com
Lambeth Townsend
SBN: 20167500
!townsend@lglawfinn.com
Ashley D. Thomas
SBN: 24090430
athomas@ lglawfirm.com
Lloyd Gosselink, Rochelle & Townsend, P.C.
816 Congress Avenue, Suite 1900
Austin, Texas 78701
Telephone: (512) 322-5800
Facsimile: (512) 472-0532
Lead Attorneys for Appellees the City of Georgetown, Chisholm Trail Special
Utility District and the District Directors.




Appellant's Brief                                                    Page 3
Daniel C. Wiseman
SBN: 2402178
Daniel. wiseman @texasattomeygeneral. gov
Office of the Texas Attorney General
Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Facsimile: (512) 320-0911
Lead Attorney for Appellees the Public Utility Commission of Texas,
Commissioner Donna L. Nelson, Commissioners Kenneth W Anderson, Jr., and
Commissioners Brandy Marty Marquez.


Breck Harrison
SBN: 24007325
bharrison @ jw .com
Leonard Dougal
SBN: 06031400
ldougal @ jw .com
Jackson Walker, L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: (512) 236-2000
Facsimile: (512) 236-2002
Attorneys for Appellees Chisholm Trail Special Utility District and District
Directors Delton Robinson, Ed Pastor, Mike Sweeney, James Pletcher, Robert
Kostka, David Maserang, Gary Goodman, and Robert Johnson, Jr.


Art Rodriguez
Russell & Rodriguez, L.L.P.
1633 Williams Drive, Building 2, Suite 200
Georgetown, Texas 78628-3659
(512) 930-1317
(866) 929-1641 (Fax)
arodriguez @txadminlaw.com
Attorney for Appellee the City of Georgetown

Appellant's Brief                                                     Page 4
Kerry E. Russell
Russell & Rodriguez, L.L.P.
1633 Williams Drive, Building 2, Suite 200
Georgetown, Texas 78628
(512) 930-1317
(866) 929-1641 (Fax)
krussell @txadminlaw .com


Sam Chang
Staff Attorney
Public Utility Commission of Texas
Legal Division
1701 N. Congress Ave.
Austin, Texas 78711-3326
(512) 936-7261
(512) 936-7268 (fax)
sam.chang@puc.texas.gov
Attorney for the Public Utility Commission of Texas Staff




Appellant's Brief                                           Page 5
                                                 TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL .................................................................................... 2

TABLE OF CONTENTS .............................................................................................................. 6

INDEX OF AUTHORITIES ......................................................................................................... ?

APPELLANT'S BRIEF .............................................................................................................. 13

STATEMENT OF THE CASE ................................................................................................... 13

STATEMENT OF JURISDICTION .......................................................................................... l5

STATEMENT ON ORAL ARGUMENT .................................................................................. 15

ISSUE PRESENTED ................................................................................................................... 15

STATEMENT OF FACTS .......................................................................................................... 16

SUMMARY OF AGRUMENT ................................................................................................... 33

ARGUMENT ................................................................................................................................ 35

CONCLUSION ............................................................................................................................ 81

PRAYER ....................................................................................................................................... 81

CERTIFICATION OF COMPLIANCE ................................................................................... 83

CERTIFICATE OF SERVICE .................................................................................................. 83

APPENDIX TO APPELLANT'S BRIEF .................................................................................. 85




Appellant's Brief                                                                                                                      Page 6
                                    INDEX OF AUTHORITIES

Cases
Austin Nursing Ctr., Inc. v. Lovato,
   171 S.W.3d 845 (Tex.2005) ................................................................................ 78
Bexar Metro. Water Dist. v. Texas Com'n on Envtl. Quality, 185ch S.W.3d 546
  (Tex. App.-Austin 2006, pet. denied) ........................................... 62, 63
Bohannon v. Texas Bd. of Criminal Justice,
   942 S.W.2d 113 (Tex.App.-Austin 1997, writ denied) ...................................... 40
Byrd v. City of Dallas,
  6 S.W.2d 7380 (Comm'n App. 1928) .................................................................. 42
Cash Am. Int'l Inc. v. Bennett,
   35 S.W.3d 12 (Tex.2000) .................................................................................... 73
Central Power & Light Co. v. Public Uti!. Comm 'n,
   17 S.W.3d 780 (Tex. App.-Austin 2000, pet. denied) ........................................ 72
City of Austin v. McCall, 68 S.W. 791 (1902) ....................................... 80
City of Beaumont v. Bouillion,
   896 S.W.2d 143 (Tex.1995) ................................................................................ 40
City of El Paso v. Heinrich,
   284 S.W.3d 366 (Tex. 2009) ............................................................. 37, 51, 53, 54
City of Elsa v. M.A.L.,
   226 S.W.3d 390 (Tex. 2007) ............................................................................... 51
City of Ingleside v. City of Corpus Christi,
   469 S.W.3d 589 (Tex.2015) .......................................................................... 36, 70
City of Lubbock v. Phillips Petroleum Co.,
   41 S.W.3d 149 (Tex. App.-Amarillo 2000, no pet.) ........................................... 69
City of The Colony v. N. Texas Mun. Water Dist.,
   272 S.W.3d 699 (Tex. App.- Fort Worth, 2008, no pet.) .................................. 62
City of Waco v. Kirwan,
   298 S.W.3d 618 (Tex.2009) ................................................................................ 35
Cobb v. Harrington,
   190 S.W.2d 709 (Tex. 1945) ............................................................................... 53
Continental Coffee Prods. Co. v. Cazarez,
   937 S.W.2d 444 (Tex.1996) .......................................................................... 73, 78
Crofts v. Court of Civil Appeals,
   362 S.W.2d 101 (Tex.1962) ................................................................................ 73
Dallas Area Rapid Transit v. Whitley,
   104 S.W.3d 540 (Tex. 2003) ............................................................................... 43

Appellant's Brief                                                                                         Page 7
Davis v. City of Lubbock,
  326 S.W.2d 6990 (Tex. 1959) .............................................................................. 42
De Leon v. City of El Paso,
   353 S.W.3d 285 (Tex.App.-El Paso 2011, no pet.) ............................................ 40
De Los Santos v. City of Robstown,
  No. 13-11-00278-CV, 2012 WL 67067808 (Tex. App.-Corpus Christi Dec. 13,
  2012, no pet.) ....................................................................................................... 51
Edgewood Indep. Sch. Dist. v. Meno,
   917 S.W.2d 717 (Tex.1995) ................................................................................ 68
Ehlinger v. Rankin,
   9 Tex. Civ. App. 424, 29 S.W. 240 (1895) ......................................................... 41
Fed. Sign v. Tex. S. Univ.,
   951 S.W.2d 401 (Tex.1997) .......................................................................... 53, 54
Frasier v. Yanes,
   9 S.W.3d 422 (Tex. App.-Austin 1999, no pet.) ........................................... 39, 41
Garcia v. Corpus Christi Civil Serv. Bd.,
   No. 13-07-00585-CV, 2009 WL 2058892 (Tex. App.-Corpus Christi July 16,
  2009, no pet.) ....................................................................................................... 40
Gatesco Q.M., Ltd. v. City of Houston,
  333 S.W.3d 3388 (Tex. App.-Houston [14th Dist.] 2010, no pet.) ..................... 51
Harris Cnty. Flood Control Dist. v. Mann,
   140 S.W.2d 1098 (Tex. 1940) ............................................................................. 37
Hays County v. Hays County Water Planning P'ship,
  106 S.W.3d 3497 (Tex.App.-Austin 2003, no pet.) ............................................. 79
Hendee v. Dewhurst,
   228 S.W.3d 354 (Tex. App.-Austin 2007, pet. denied) ...................................... 39
Hindman v. Harding,
   No. 03-04-00479-CV, 2005 WL 1038828 (Tex. App.-Austin May 5, 2005, no
  pet.) ...................................................................................................................... 70
Houston Belt & Terminal Ry. Co. v. City of Houston,
   No. 14-0459, 2016 WL 1312910 (Tex. Apr. 1, 2016) .................................. 53, 54
In re Smith,
  333 S.W.3d 5825 (Tex.2011) ............................................................................... 54
Jones v. Ross,
   173 S.W.2d 1022 (Tex. 1943) ............................................................................. 39
Key v. Comm'rs Court of Marion Cnty.,
   727 S.W.2d 667 (Tex. App.-Texarkana 1987, no writ) ............................... 38,42


Appellant's Brief                                                                                                       Page 8
Lewis v. Davis,
    199 S.W.2d 146 (Tex. 1947) ......................................................................... 38, 67
Lone Star Coil. Sys. v. Immigration Reform Coal. of Texas (IRCOT),
   418 S.W.3d 263 (Tex. App.-Houston [14th Dist.] 2013, pet. denied) ................ 51
MAG-T, L.P. v. Travis Cent. Appraisal Dist.,
  161 S.W.3d 617 (Tex. App.-Austin 2005, pet. denied) ...................................... 74
Magnolia Bend Volunteer Fire Dep't, Inc. v. McDonnell, No.
 09-03-051CV, 2003 WL 22922799 (Tex. App.-Beaumont Dec. 11, 2003, no
 pet.) ...................................................................................................................... 39
Martin v. Martin, Martin & Richards, Inc.,
  12 S.W.3d 120 (Tex. App.-Fort Worth 1999, no pet.) ....................................... 70
Miller v. S. E. Texas Reg'l Planning Comm'n, No. 03-11-00817-CV,
 2013 WL 3724716 (Tex. App.-Austin July 11, 2013, no pet.) ............................ 43
Mitchell Cty. v. City Nat. Bank
   43 S.W. 8801 (Tex. 1898) .................................................................................... 41
Morales v. Hidalgo Cty. Irrigation Dist. No.6,
   No. 13-14-00205-CV, 2015 WL 5655802 (Tex. App.-Corpus Christi Sept. 24,
   2015, pet. denied) ........................................................................................... 38, 42
Motorola v. Tarrant County Appraisal Dist.,
    980 S.W.2d 899 (Tex.App.-Fort Worth 1998, no pet.) ...................................... 41
Niagara Fire Ins. Co. v. Numismatic Co. of Fort Worth,
    380 S.W.2d 830 (Tex. Civ. App.-Fort Worth 1964, writ ref'd n.r.e) ................. 80
Nueces Cty. v. Ferguson,
    97 S.W.3d 205 (Tex. App.-Corpus Christi 2002, no pet.) .................................. 40
Philadelphia Indem. Ins. Co. v. White,
    No. 14-0086, 2016 WL 2848487 (Tex. May 13, 2016) ...................................... 38
Plano Surgery Ctr. v. New You Weight Mgmt. Ctr.,
    265 S.W.3d 496 (Tex.App.-Dallas 2008, no pet.) .............................................. 39
Ritchey v. Vasquez,
    986 S.W.2d 611 (Tex.1999) ................................................................................ 73
Roberts Express, Inc. v. Expert Transp., Inc.,
    842 S.W.2d 766 (Tex. App.-Dallas 1992, no writ) ...................................... 72, 73
San Antonio Indep. Sch. Dist. v. Board ofTrs. of San Antonio Elec. & Gas Sys.,
    204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947, writ refd n.r.e.) ........................ 37
Save Our Springs Alliance, Inc. v. City of Dripping Springs,
    304 S.W.3d 871 (Tex. App.-Austin 2010, pet. denied) ..................................... 79
Sneed v. Webre,
    465 S.W.3d 169 (Tex. 2015) ............................................................................... 78

Appellant's Brief                                                                                                      Page 9
Spring Branch Mgmt. Dist. v. Valco Instruments Co., L.P.,
  No. 01-11-00164-CV, 2012 WL 2923151 (Tex. App.-Houston [1st Dist.] July
  12, 2012, no pet.) ................................................................................................. 40
Steele v. City of Houston,
   603 S.W.2d 786 (Tex.1980) ................................................................................ 40
Strayhorn v. Lexington Ins. Co.,
   128 S.W.3d 772 (Tex. App.-Austin 2004) .......................................................... 74
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
   84 S.W.3d 212 (Tex. 2002) ................................................................................. 72
Tex. Educ. Agency v. Leeper,
   893 S.W.2d 432 (Tex.1994) ................................................................................ 53
Tex. Lottery Comm 'n v. First State Bank of De Queen,
   325 S.W.3d 628 (Tex. 2010) ............................................................................... 51
Tex. Natural Res. Conservation Comm 'n v. White,
  46 S.W.3d 864 (Tex.2001) ................................................................................... 43
Tex. Parks & Wildlife Dep't v. Sawyer Trust,
  354 S.W.3d 3843 (Tex.2011) ............................................................................... 53
Texas A & M Univ. Sys. v. Koseoglu,
   233 S.W.3d 835 (Tex. 2007) ............................................................................... 36
Texas Ass'n of Bus. v. Texas Air Control Bd.,
   852 S.W.2d 440 (Tex. 1993) ......................................................................... 43, 78
Texas Dep't of Ins. v. Reconveyance Servs., Inc.,
  306 S.W.3d 256, 258 (Tex. 2010) ...................................................... 51
Texas Dep 't of Parks & Wildlife v. Miranda,
   133 S.W.3d 217 (Tex. 2004) ............................................................. 35, 36, 37, 70
Texas Dep 't of Transp. v. Sefzik,
   355 S.W.3d 618 (Tex. 2011) ............................................................................... 51
Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist.,
   830 S.W.2d 88 (Tex.1992) .................................................................................. 73
Texas Mun. League Intergovernmental Risk Pool v. Texas Workers' Comp.
  Comm'n,
  74 S.W.3d 3773 (Tex. 2002) .......................................................................... 41, 68
Texas Nat. Res. Conservation Comm'n v. IT-Davy,
   74 S.W.3d 849 (Tex. 2002) ........................................................................... 44, 45
Texas State Bd. of Examiners in Optometry v. Carp,
   162 Tex. 1, 343 S.W.2d 242 (1961) ................................................................... 73
Texas Tech Univ. Health Scis. Ctr. v. Rao,
   105 S.W.3d 763 (Tex. App. 2003-Amarillo, pet. dism'd) .................................. 40

Appellant's Brief                                                                                              Page 10
Texas Water Comm'n v. City of Fort Worth,
   875 S.W.2d 332 (Tex. App.- Fort Worth, 1994 writ denied) ........................... 63
Thomas v. Beaumont Heritage Soc.,
   339 S.W.3d 900 (Tex. App.- Beaumont 2011, pet.denied) .............................. 79
Town of Flower Mound v. Rembert Enters.,
  369 S.W.3d 465, 474 (Tex. App.-Fort Worth 2012, pet.denied) .................... 51
Wichita Falls State Hosp. v. Taylor,
   106 S.W.3d 692 (Tex. 2003) ............................................................................... 39
Willacy Cnty. Water Control & Improvement Dist. No.1 v. Abendroth,
   177 S.W.2d 936 (Tex. 1944) ............................................................................... 38


Statutes
Tex. Civ. Prac. & Rem Code§ 51.014(a)(8) .................................................... 15, 32
Tex. Civ. Prac. & Rem. Code§ 37.006(b) .............................................................. 51
Tex. Civ. Prac. & Rem. Code§ 51.014(b), (c) ....................................................... 32
Tex. Const. art III, §52 ................................................................................... passim
Tex. Const. art XI, § 3 ...................................................................... 37
Tex. Const. art. XVI,§ 59 ................................................................................. 38, 58
Tex. Gov't Code§ 791.001 ................................................................. 62
Tex. Gov't Code§ 791.011(e) ................................................................................. 64
Tex. Gov't Code§ 791.026(a)(l), (g) ...................................................................... 62
Tex. Gov't Code §§ 22.201, 22.220 ........................................................................ 15
Tex. Gov't Code § 791.011(c) .......................................................................... 58, 62
Tex. Gov't Code§§ 2001.045, 2001.146(c), 2001.171 .......................................... 77
Tex. Water Code, Chapter 13 ............................................................................ 27, 28
Tex. Water Code, Chapter 65 ...................................................................... 16, 58, 65
Tex. Water Code§ 13.002(19) ................................................................................ 46
Tex. Water Code§ 49.002 ...................................................................................... 59
Tex. Water Code§ 13.248 ...................................................................................... 24
Tex. Water Code§ 49.321 ...................................................................................... 27
Tex. Water Code§ 65.011 ...................................................................................... 58
Tex. Water Code§ 65.012(1) .................................................................................. 58
Tex. Water Code§§ 65.012, 65.201 ....................................................................... 65
Tex. Water Code§§ 65.723-65.726 ..................................................................... 27
Tex. Water Code§ 65.727 ...................................................................................... 26



Appellant's Brief                                                                                        Page 11
Regulations
16 Tex. Admin. Code§ 22.264(c) ........................................................................... 76


Other Authorities
35 Tex. Prac., County And Special District Law§ 5.14 ......................................... 62
Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze,
   52 U. Chi. L.Rev. 1090 (1985) ........................................................................... 73
HB 1600 ............................................................................................................ 50, 52
HB 1700 .................................................................................................................. 48
HB 4172 .................................................................................................................. 25
SB 567 ......................................................................................................... 48, 50, 52
Tex. Att'y Gen. Op. No. JC-0335 (2001) ................................................................ 38




Appellant's Brief                                                                                                 Page 12
                                          No. 03-16-00214-CV


                                            IN THE
                                      COURT OF APPEALS
                                           FOR THE
                                   THIRD DISTRICT OF TEXAS


                  CHISHOLM TRAIL SUD STAKEHOLDERS GROUP,
                                                       Appellant,
                                                          v.
CHISHOLM TRAIL SPECIAL UTILITY DISTRICT, AND DISTRICT
DIRECTORS DELTON ROBINSON, ED PASTOR, MIKE SWEENEY, JAMES
PLETCHER, ROBERT KOSTKA, DAVID MASERANG, GARY GOODMAN,
AND ROBERT JOHNSON, JR.; THE PUBLIC UTILITY COMMISSION OF
TEXAS; ET AL.,
                                               Appellees.


                             From the 4191h Judicial District Court of
                                     Travis County, Texas


                                       APPELLANT'S BRIEF



                                                     I.
                                  STATEMENT OF THE CASE 1

1.1     This case concerns the ability of Texas citizens to seek judicial relief for the

unauthorized, improper acts of their public officials, political subdivisions, and

state agencies act in violation of the Texas Constitution and statutes. The ruling of

1
  This Statement is supported by the record below which consists of the original Clerk's Record, reference to which
is by "CR"; and the original Reporter's Record, reference to which is by "RR".
Appellant's Brief                                                                                        Page 13
the District Court has denied these citizens the opportunity to present evidence of

these wrongful acts.

1.2    Chisholm Trail Special Utility District ("CTSUD") is a water district created

to serve a rural area in portions of Bell, Burnet and Williamson Counties. CR 477,

481.    CTSUD's Directors resolved to transfer the entire water system, the

Certificate of Convenience and Necessity, and all assets to the City of Georgetown

("City"). CR 485. CTSUD and the City thereafter entered into an asset transfer

agreement and requested the Public Utility Commission's approval of the

transaction. CR 486-488. The transaction would: (i) grant CTUSD's assets to the

City in violation of Article III, § 52(a) of the Texas Constitution; (ii) render

CTUSD legally incapable of providing water utility service to its constituents; (iii)

illegally nullify CTSUD landowners' and consumers' statutory right to vote on

water utility issues; and (iv) affect an dissolution of CTSUD.         CR 492-507.

Accordingly, the Chisholm Trail SUD Stakeholders Group ("Appellant") filed suit

for declaratory and injunctive relief necessary to remedy the Appellee's

unconstitutional, unlawful, and ultra vires acts. CR 509-517. Appellees asserted

pleas to the jurisdiction claiming that the doctrines of sovereign immunity,

governmental immunity, primary jurisdiction and/or exclusive jurisdiction shield

their unlawful actions from judicial review. CR 3-5, 15-16, 22-24, 31-35. The


Appellant's Brief                                                             Page 14
trial court erroneously granted those pleas and dismissed Appellant's claims with

prejudice. CR 657-661. Therefore, Appellant brings this interlocutory appeal,

respectfully requesting that the Court of Appeals reverse the trial court order

granting the Appellees' pleas to the jurisdiction, and remand this lawsuit for further

proceedings. See e.g., CR 662-663.

                                          II.
                       STATEMENT OF JURISDICTION

        2.2 This Court has appellate jurisdiction to review civil interlocutory

orders of Travis County district courts that grant pleas to the jurisdiction filed by

governmental units. Tex. Gov't Code §§ 22.201, 22.220; Tex. Civ. Prac. & Rem

Code§ 51.014(a)(8).

                                          III.
                     STATEMENT ON ORAL ARGUMENT

       3.1    Appellants request the opportunity to present oral argument to: (a)

provide the Court a more complete understanding of the facts presented in this

appeal; (b) allow the Court to better analyze the complicated legal issues presented

in this appeal; and (c) significantly aid the Court in deciding this case.

                                       IV.
                                ISSUE PRESENTED

        Issue 1:    Whether the trial court erred in granting Appellees' pleas to the
                    jurisdiction.

Appellant's Brief                                                             Page 15
                                          v.
                             STATEMENT OF FACTS

       A. Identification of Parties.

       5.1    Appellant Chisholm Trail SUD Stakeholders Group ("Appellant") is a

domestic nonprofit corporation. CR 477.        Appellant is organized to advocate for

and protect the interests of residents and landowners in the rural areas of Bell,

Burnet and Williamson Counties in receiving adequate water utility service. /d.

       5.2    Appellee Chisholm Trail Special Utility District ("CTSUD" or

"District") is a special utility district created in 1990 by order of the Texas Natural

Resources     Conservation   Commission        (now,   the   Texas   Commission     on

Environmental Quality ("TCEQ")), pursuant to Chapter 65 of the Texas Water

Code. CR 481-482. The District's geographic area covers approximately 257,116

acres and encompasses portions of Bell, Burnet, and Williamson Counties. CR

4 77. The District does not include any portion of the incorporated area of the City

of Georgetown. /d. The District has provided retail water utility service to this

area pursuant to a Certificate of Convenience & Necessity ("CCN") No. 11590

issued by the TCEQ; jurisdiction over this certificate has now been statutorily

transferred to the Public Utility Commission ("PUC"). CR 477-478. The District

serves more than 7,000 water utility customers. CR 482. The District is governed

by a seven-member board of directors, elected at-large by the qualified voters in

Appellant's Brief                                                              Page 16
the District. /d. The District has operated as a viable retail water utility for more

than twenty years. CR 481-485,493.

       5.3    Appellees Delton Robinson, C.E. ("Ed") Pastor, Mike Sweeney,

Robert Kotska, James Pletcher, David Maserang, Pat Gower, Gary Goodman, and

Robert Johnson, Jr., are the individuals who are serving or have served as Directors

of CTSUD, a political subdivision of the State of Texas, duly formed and existing

under the laws of the State of Texas. CR 478. These Appellees (collectively

referred to as the District "Board Members" or "Directors") are being sued in their

official capacities as the current and former board members for CTSUD. /d.

       5.4    Appellee the City of Georgetown ("City" or "Georgetown") is a home

rule, municipal corporation located in Williamson County, Texas. CR 482. The

City has a council-manager form of government. /d. The City provides retail

water utility services pursuant to a CCN issued by the TCEQ (i.e., CCN No.

12369). /d. The Georgetown Utility System ("GUS") is a division of the City of

Georgetown. /d. GUS is responsible for the management and operations of the

City's electric, water and wastewater systems. /d. GUS has an advisory board that

reviews policy, rates, and contracts and makes recommendations related to these

issues to the City Council. Recommendations by the GUS advisory board are

subject to ratification by the City Council. /d. The GUS advisory board is selected


Appellant's Brief                                                             Page 17
by the City Council. !d.

       5.5    Appellees Donna L. Nelson, Kenneth W. Anderson, Jr., and Brandy

Marty Marquez ("Commissioners") are the individuals appointed to serve as the

three commissioners of the PUC, as prescribed by Tex. Util. Code § 12.051, and

are being sued in their official capacities. CR 478.

       B.     Asset Transfer and Administrative Proceedings.

       5.6    In September 2013, the District and the City entered into a written

Asset Transfer and Utility System Consolidation Agreement ("Agreement" or

"Asset Transfer Agreement"). CR 485. The Agreement provided for the transfer

of the District's entire water system to the City, including all of the District's

facilities, property, virtually all of its cash, contracts, obligations, and all of the

District's certificated water service area. !d.

       5. 7   The Agreement further provided that the closing of this transaction

was conditioned upon the parties obtaining consent from various parties, including

the "[a]pproval by the TCEQ for the transfer of the CTSUD CCN and the Assets."

CR 486. As such, in November 2013, the City filed an Application for Sale,

Transfer, or Merger of a Retail Public Utility" ("STM Application" or

"Application") with the TCEQ. !d.




Appellant's Brief                                                              Page 18
       5.8    Numerous persons protested the proposed transaction and requested a

contested administrative hearing by the TCEQ, including the members of the

Appellant nonprofit corporation, the Bell County Commissioners Court, Texas

Senator Troy Fraser, and Texas Representative Jimmie Don Aycock. CR 486-487.

These protestors assert that the interests of the water utility customers, businesses,

and landowners within the District are best served by its continued operation as a

freestanding district that is governed by a board of directors who are electorally

and politically accountable to the voters within the District's boundaries. /d. The

protestants also assert that the transfer of the CTSUD's assets and CCN to City of

Georgetown would cede control of water utility service decisions for areas well

beyond the Georgetown city limits to the Georgetown City Council. /d.

Accordingly, the protestants additionally assert that this would disenfranchise,

alienate and politically isolate the customers, businesses, and landowners in the

rural area of the District, leaving them with no representation in their water matters

because all customers in the unincorporated areas of Williamson County (outside

the City of Georgetown), and the customers in Bell and Burnet Counties cannot

vote for the Georgetown City Council. /d. Consequently, the protestants assert

that this action would be detrimental to the interests and property values of

customers, businesses, and property owners in the portions of Bell, Burnet, and


Appellant's Brief                                                             Page 19
Williamson counties located outside Georgetown's city limits. /d. The protestants

assert that these actions by the District and the City of Georgetown violate

numerous statutes and provisions of the Texas Constitution. CR 490.

       5.9    In May 2014, the matter was referred to the State Office of

Administrative Hearings ("SOAH") for a contested case hearing.          CR 487.

Following a preliminary hearing, the Administrative Law Judge determined that

the TCEQ had jurisdiction over Georgetown's STM Application and admitted

parties, including five protestants ("Protestants"), three of whom are also

Appellant's members. /d.

       5.10 On August 21, 2014, the District's Board adopted a resolution that

purports to: (a) authorize the District's president to execute an Amended Asset

Transfer Agreement with Georgetown; (b) authorize the District's president to

execute an Operations Agreement between the District and Georgetown; (c)

authorize the District's president to consummate the transactions contemplated by

the Amended Asset Transfer Agreement and Operations Agreement; and (d)

approve the adoption of a Transition Surcharge of $4.75 per meter per month for

District customers "to fund CTSUD's operating costs and expenses associated with

transitioning service to the City of Georgetown and with maintaining CTSUD's




Appellant's Brief                                                         Page 20
CCN." CR 487-488. The Amended Asset Transfer Agreement and the Operations

Agreements were not attached to or incorporated into the resolution. /d.

         5.11 On September 1, 2014, Georgetown's STM Application was

statutorily transferred from the subject matter jurisdiction of the TCEQ to the PUC.

CR 488. The filings in that matter (SOAH DOCKET NO. XXX-XX-XXXX and PUC

DOCKET NO. 42861) are publicly available online. /d. 2

         5.12 On September 12, 2014, CTSUD and the City executed a First

Amendment to Asset Transfer and Utility System Consolidation Agreement ("First

Amendment" or "First Amended Agreement") which incorporated several

documents related to the transaction, including a Service Area Operations and

Management Agreement ("Operations Agreement"). Id.

         5.13 The aforementioned resolution provides that pursuant to the

Operations Agreement, "the City will provide water utility services within the

CTSUD CCN." Accordingly, the Operations Agreement generally provides that

the City will be responsible for operating the District's water system and have all

powers of District Management and staff. CR 488-489. Under the Agreement, the

parties claimed that the District shall continue to exercise all of the powers and

duties of the CCN holder for water utility service within the District's CCN. Id.
2
          The         filings       in     this      docket          may       be         accessed      by      VISiting
http://i nterchan ge .puc.texas.!!ov/W ebApp!Interchan ge/appl ication/dbapps/fi li ngs/pgSearch.asp and searching for
control number 42861. Those filings were incorporated by reference in the Appellant' s and Appellees' pleadings.
See e. g., RR 64-66.
Appellant's Brief                                                                                             Page 21
Nevertheless, under the First Amended Agreement, the District transferred all of its

water system to the City and adopted the City's policies and rate structure (not

including the Transition Surcharge). /d. Further, the District agreed that the City

will bill, collect, and retain water service revenues collected within the District's

CCN, less a portion of the aforementioned Transition Surcharge. /d.

       5.14 Following the          execution of the First Amendment,        CTSUD

consummated the transaction, transferring its water system and nearly all of its

assets to the City. CR 489. Since the closing of the asset transfer, Appellants

allege that the District effectively ceased to exist. /d. The District no longer

operates an office. /d. Calls to the District's telephone number (254-793-3103)

were greeted with a recording stating that caller had reached "Georgetown Utility

Systems, formerly Chisholm Trial Special Utility District." /d.       The recorded

messages also indicated that the District's phone number will be discontinued. /d.

Further, District customers now receive water utility bills from the "Georgetown

Utility Systems Western District Office."        /d.   The First Amendment and

Operations Agreement also made the City responsible for seeking approval to

transfer the District's CCN. /d.

       5.15 The City produced a Financial Report for fiscal year 2014, which

provides that the City experienced a 91.8% increase in revenue over the prior year,


Appellant's Brief                                                            Page 22
including $71.5 million in capital grants and contributions due primarily to the

acquisition of CTSUD. CR 489-490. Hence, under the First Amendment to the

Asset Transfer Agreement, the City acquired the District's water system, which the

City has valued at more than $70 million, as well as the District's water reserves

and the revenues from its profitable retail water utility. Id. Appellant alleges that

the City's valuation fails to account for additional assets and receivables, including

water rights, and is considerably below market value. Id at n. 2.

        5.16 In September 2014, the Protestants in the contested case hearing filed

a motion seeking the dismissal of Georgetown's STM Application. CR 490. The

Motion provided, inter alia, that Georgetown's STM Application seeks to illegally

revoke the District's CCN, dissolve the District, and transfer the District's assets to

Georgetown. Id. Further, the motion provided that the PUC lacks jurisdiction to

approve Georgetown's STM Application and affect an illegal dissolution of the

District, as well as an illegal acquisition of the District's water system and CCN.

Id. The PUC Staff responded by asserting that the PUC does not have jurisdiction

to evaluate whether the STM Application or Asset Transfer Agreement violates the

statutory requirements related to dissolution of special utility districts. Id. 3 The

Administrative Law Judge agreed and ordered that the proceeding continue solely
3
  See Staff's Response to Protestants' Motion for Summary Disposition (Item No. 131) at pg. 3 (available online
here:
http://interchange.puc.texas .gov/WebAppllnterchange/app lication/dbapps/filin!!s/p!!Search Results.asp?TXT CNT
R N0=42861 &TXT ITEM NO= 13 1).
Appellant's Brief                                                                                    Page 23
regarding the issues regarding the proposed transfer of the District's CCN to

Georgetown. Id. The Public Utility Commissioners refused to hear an appeal of

that decision, and later issued a Preliminary Order identifying the issues that must

be addressed by the ALJ. Id. Notably, the Preliminary Order indicated that the

proceeding would not address the dissolution of the District or the approval of the

Asset Transfer Agreement. Id. 4

         5.16 On January 15, 2015, Georgetown and the District entered into a

Second Amendment to the Asset Transfer and Utility System Consolidation

Agreement ("Second Amended Agreement" or "Second Amendment"). CR 491.

The Second Amendment served primarily to provide that Georgetown and the

District intended for the Asset Transfer Agreement to constitute a contract made

under Texas Water Code Section 13.248. Id. The PUC later determined that this

statute does not apply to Georgetown's Application. Id. 5 Nevertheless, the PUC

also indicated that Georgetown's Applications may be processed under other

provisions of the Water Code without any further amendment of the Application or

further notice being published regarding the same. Id. 6




4
    See the PUC's Preliminary Order (Item No. 180) at pgs. 3-11 (available online here:
http://interchan ge .puc. texas. 'i!OVIW ebAppllnterchan 'i!e/application/dbappslfil i ngs/o!!Searc h Resul ts.asp ?TXT CNT
R N0=4 2861 &TXT ITEM NO= 182).
5
  See PUC Preliminary Order (Item No. 182) at pg. 7.
6
  See id. at pgs. 5-6.
Appellant's Brief                                                                                               Page 24
        5.17 On April4, 2015, House Bill4172 was introduced in the Texas House

of Representatives relating to the dissolution of CTSUD. CR 491. This bill was

introduced in accordance with terms of the Asset Transfer Agreement providing

that CTSUD and Georgetown will pursue efforts to seek passage of legislation that

would authorize the immediate dissolution of the District. Id. The bill proposed

legislation that would have authorized the District board to adopt an order that

would dissolve the District and affect a transfer of its assets to Georgetown. Id.

House Bill 4172 would have attempted to further preclude any judicial review of

the Board's order dissolving the District. Id.                   On April 22, 2015, Defendant

CTSUD Directors Delton Robinson and Michael Sweeney as well as other CTSUD

and City representatives testified at a public hearing before the Texas House of

Representatives' Special Committee on Special Purposes Districts in favor of

House Bill 4172. !d.            Conversely, several witnesses testified in opposition to

House Bill 4172 and submitted letters to members of the legislature opposing the

bill.   /d.    House Bill 4172 did not pass during the legislative sessiOn.                            /d. 7

Therefore, the CTSUD has not been legally dissolved. /d.

        5.18 Appellant initiated this lawsuit on August 12, 2015.                               CR 636.

Appellant's lawsuit alleges, inter alia, that the PUC lacks the authority or


7
  The legislative history for House Bill 4172 is publicly available on the Texas Legislature's website here:
hllp://www .le:is.state. tx. u IB i llLookup/History.asox ?Le;Sess=8-t R&B ill-HB4172.

Appellant's Brief                                                                                  Page 25
jurisdiction to process and approve Georgetown's Application because it affects an

illegal dissolution of the District and transfer of the District's CCN and assets. See

e.g., CR 499-506. The administrative proceeding, however, continued over the

Protestants' objection that the Application was being improperly considered

notwithstanding the pendency of this lawsuit challenging the illegality of the Asset

Transfer Agreement and the PUC's lack of jurisdiction over the Application. CR

503. Ultimately, the PUC issued a final order approving the Application. ld.

Thereafter, Protestants exhausted all available administrative remedies. Id.

       5.19 On March 8, 2016, the Protestants petitioned a Travis County District

Court for judicial review of the PUC's final order. CR 522-634. Protestants, who

include members of the Appellant herein, petitioned in intervention of this lawsuit.

/d.

       C. Instant Lawsuit and Pleas to the Jurisdiction.

       5.20 On March 8, 2016, Appellant filed its First Amended Petition. CR

476-521. Appellant seeks declaratory and injunctive relief against all Appellees.

See CR 509-517.        Notably, Appellant's First Amended Petition alleges and

requests the trial court to make the following declarations:

              a. The District issued debt and/or loaned its credit, and therefore
                 cannot dissolve pursuant to Texas Water Code section 65.727;



Appellant's Brief                                                              Page 26
              b. The District cannot consolidate with the City of Georgetown
                 pursuant to Texas Water Code sections 65.723- 65.726;

              c. The District incurred bonded indebtedness and has not been
                 inactive for five consecutive years, and therefore cannot dissolve
                 pursuant to Texas Water Code section 49.321;

              d. The District is not otherwise authorized by Texas law to dissolve;

              e. The District, the District Directors, the City, the PUC and the
                 Commissioners have engaged in an unlawful dissolution of the
                 District;

              f. The City's Application, seeking PUC approval to transfer
                 CTSUD' s CCN to Georgetown, will render CTSUD incapable of
                 providing water utility service within its own boundaries, in
                 violation of state law.

              g. The District has transferred its public assets to the City in violation
                 of article III, section 52 of the Texas Constitution;

              h. CTSUD transferred its water system to the City and cannot provide
                 water utility service within the District's boundaries in violation of
                 state law;

              1.    The Asset Transfer Agreement and its amendments, violate Texas
                    law, contravene public policy, and are void;

              J. Georgetown's Application seeks PUC approval to affect an illegal
                 dissolution of the District and transfer of the District's CCN and
                 assets;

              k. The PUC lacks jurisdiction over Georgetown's Application;

              1. Chapter 13 of the Texas Water Code does not provide the PUC
                 with authority or jurisdiction to affect a dissolution of the District;



Appellant's Brief                                                                 Page 27
              m. Chapter 13 of the Texas Water Code does not provide the PUC
                 with authority or jurisdiction to render the District incapable of
                 providing water utility service within its own boundaries;

              n. Chapter 13 of the Texas Water Code does not provide the PUC
                 with authority or jurisdiction to nullify the District landowners'
                 and consumers' statutory right to vote on water utility issues;

              o. The Commissioners committed ultra vires acts outside of their
                 legal authority in approving the Application filed by Georgetown
                 to effectuate the Asset Transfer Agreement;

              p. The District and the Defendant Directors of the District have
                 violated the Texas Open Meetings Act; and

              q. The Defendant Directors of the District committed ultra vires acts
                 outside of their legal authority in approving and effectuating the
                 Asset Transfer Agreement.

              CR 509-513.


Further, Appellant requested that the trial court Issue injunctive relief, both

temporary and permanent:

       (a)    enjoining the transfer of the District's assets and water system to the
              City;

       (b)    enjoining Defendants from taking any further acts under the
              Agreement (including amendments);

       (c)    enjoining the City from collecting any revenue from the customers of
              the District, including the illegal surcharge;

       (d)    enjoining the PUC, the Commissioners, or any administrative law
              judge from making any decision or final order regarding
              Georgetown's Application;

Appellant's Brief                                                                Page 28
       (e)    staying or enjoining all proceedings before the PUC and State Office
              of Administrative Hearings related to Georgetown's Application,
              pending further order of the Court;

       (f)    voiding and/or enjoining the illegal and ultra vires acts of the PUC
              and its Commissioners;

       (g)    enjoining the transfer of the District's CCN to the City;

       (h)    enjoining Defendants from taking further acts without lawful
              authority, as set forth above;

       (i)    preventing the dissolution, transfer or waste of the District's assets
              and water system;

       G)     issue injunctive relief necessary to remedy the PUC's illegal acts and
              the Commissioners' ultra vires acts; and

       (k)    issue any injunctive relief necessary to remedy Defendants' illegal
              expenditures of public funds under an contract that is void or illegal.

              CR 513-514.

       5.21 Appellees responded to Appellants' lawsuit by asserting pleas to the

jurisdiction. CR 3-37. The pleas to the jurisdiction filed by the City, CTSUD and

the Directors are very similar. See id. Accordingly, Appellant's will refer to them

collectively as the "Chisholm Defendants' Pleas to the Jurisdiction", except where

specifically indicated. All of the Appellees' pleas to the jurisdiction assert that the

Appellants' claims are barred by sovereign or governmental immunity. Id. The

Appellees also alleged that the PUC has either exclusive or primary jurisdiction


Appellant's Brief                                                                Page 29
over Appellant's claims which should subject this lawsuit to dismissal or

abatement. CR 34-35.

       5.22 On March 8, 2016, the trial court conducted a hearing on the

Appellee's pleas to the jurisdiction. RR 6-75. Three days later, the presiding

judge signed the court's Order on Defendants' Pleas to the Jurisdiction and Special

Exception ("Order"). CR 657-661. The Order granted the pleas to the jurisdiction

filed by CTSUD's, the District's and Georgetown's (the "Chisholm Defendants"),

and ordered that the following claims be dismissed with prejudice:

       a.     Appellant's requests for a declaratory judgment that:

              (i)     the Chisolm Defendants have acted illegally and ultra vires by
                      acting to illegally dissolve CTSUD;

              (ii)    Defendants have acted illegally and ultra vires by acting to
                      illegally transfer CTSUD's assets to the City;

              (iii)   the Asset Transfer Agreement, including any amendments,
                      between CTSUD and the City is illegal and void;

              (iv)    Georgetown's Application seeks PUC approval to affect an
                      illegal dissolution of the District and transfer of the District
                      CCN and assets;

              (v)     PUC lacks jurisdiction over Georgetown's Application; and

       b.     Appellant's requests for injunctive relief:

              (i)     enjoining, staying, voiding, and reversing Defendants' illegal
                      and ultra vires acts;


Appellant's Brief                                                                  Page 30
              (ii)    enjoining, staying, voiding, reversing, and preventing any acts
                      to implement the Asset Transfer Agreement;

              (iii)   enjoining the transfer of the District's CCN;

              (iv)    enjoining, staying, voiding, and reversing CTSUD's actions
                      related to the transfer of CTSUD's CCN to the City of
                      Georgetown and the transfer of CTSUD's assets pursuant to the
                      Asset Transfer Agreement and amendments; and

              (v)     enjoining, staying, reversing, voiding, and preventing the
                      effectiveness of the transfer of CTSUD's CCN to the City of
                      Georgetown and the transfer of CTSUD's assets pursuant to the
                      Asset Transfer Agreement and amendments.

                      CR 658-661.

Additionally, the Order granted the PUC's plea to the jurisdiction and ordered that

the following claims be dismissed with prejudice:

       a.     Appellant's requests for a declaratory judgment that:

              (i)     the PUC lacks jurisdiction over Georgetown's Application;

              (ii)    the Commissioners have acted illegally and ultra vires by
                      processing and approving Georgetown's Application; and

       b.     Appellant's requests for injunctive relief:

              (i)     enjoining, staying, voiding, and reversing Defendants' illegal
                      and ultra vires acts;

              (ii)    staying and enjoining all proceedings before the PUC and State
                      Office of Administrative Hearings related to Georgetown's
                      Application, including any amendments, pending further order
                      of the Court;


Appellant's Brief                                                               Page 31
              (iii)    enjoining, staying, voiding, and reversing any proposal for
                       decision or final order by the PUC and/or any presiding officer
                       who has or will conduct any hearing (including any
                       Administrative Law Judge with SOAH) related to Georgetown's
                       Application, including any amendments;

              (iv)     enjoining the transfer of the District's CCN to Georgetown;


              CR 659-660.

       5.23 The trial court's Order did not grant any Appellees' pleas to the

jurisdiction as to Appellant's claims under the Texas Open Meetings Act

("TOMA"). Rather, the trial court granted the City's special exceptions; ordering

Appellant to re-plead its claim that the Chisholm Defendants violated TOMA. CR

660-661. Pursuant to Section 51.014(a)(8) of the Civil Practice & Remedies Code,

Appellant appealed from the trial court's Order granting the pleas to the

jurisdiction of the governmental units.       CR 662-671.     Appellees' pleas to the

jurisdiction were filed and requested for submission or hearing earlier than the

1801h day after the Appellees filed their original answer in the trial court. See CR

3-5, 657-661.         Accordingly, Appellant's interlocutory appeal stayed all other

proceedings in the trial court pending resolution of its appeal of the trial court's

Order granting Appellees' pleas to the jurisdiction. Tex. Civ. Prac. & Rem. Code§

51.014(b), (c). Therefore, this appeal does not address Appellant's claims under

TOMA or the trial court's order granting the City's special exceptions thereto.

Appellant's Brief                                                               Page 32
                                           VI.
                            SUMMARY OF AGRUMENT

       6.1     CTSUD is a water district created to serve a rural area in portions of

Bell, Burnet and Williamson Counties. CTSUD's Directors resolved to transfer its

entire water system, Certificate of Convenience and Necessity, and its assets to the

City of Georgetown ("City"). CTSUD and the City thereafter entered into an asset

transfer agreement, and requested the Public Utility Commission's approval of the

transaction.    The transaction would: (i)       grant CTUSD's assets to the City in

violation of Article III, § 52(a) of the Texas Constitution; (ii) render the CTUSD

legally incapable of providing water utility service to its constituents; (iii) illegally

nullify CTSUD landowners' and consumers' statutory right to vote on water utility

issues; and (iv) affect an dissolution of CTSUD.               Appellant, a nonprofit

corporation, organized to advocate for and protect the interests of residents and

landowners in the rural areas of Bell, Burnet and Williamson Counties in receiving

adequate water utility service, has associational standing to sue Appellees for

declaratory and injunctive relief necessary to remedy their illegal acts and

expenditures.       Accordingly, Appellant filed suit for declaratory and injunctive

relief necessary to remedy the Appellee's unconstitutional, unlawful, and ultra

vires acts.    Particularly, Appellant's lawsuit claims that the asset transfer violates

Article III, Section 52(a) of the Texas Constitution and that the Agreement through

Appellant's Brief                                                                Page 33
which the transfer was effectuated is void. Additionally, Appellant claims that the

asset transfer, the Agreement, and the Application that the Chisholm Defendants

filed seeking the PUC's approval of the transaction would: (i) illegally render the

District incapable of providing water utility service to its constituents; (ii) illegally

nullify the District landowners' and consumers' statutory right to vote on water

utility issues; and (iii) effect an illegal dissolution of the District. Consequently,

Appellant sued CTSUD, the City and the Directors for violating a constitutional

prohibition and acting ultra vires beyond their statutory authority. Further,

Appellants assert that the PUC is acting outside its statutory powers and cannot

grant the Chisholm Defendants requested relief. Moreover, Appellants assert that

the Commissioners acted ultra vires in processing the Application.

       6.2    Appellees filed pleas to the jurisdiction claiming that the doctrines of

sovereign immunity, governmental immunity, primary jurisdiction and/or

exclusive jurisdiction shield their unlawful actions from judicial review.          The

Appellees' pleas were unfounded. The doctrines of sovereign and governmental

immunity do not shield Appellees from lawsuits regarding their violation of Article

III, Section 52(a) of the Texas Constitution.          Similarly, the Directors' and

Commissioners' actions taken without legal authority fall within the "ultra vires

exception" to sovereign and governmental immunity.              Further, the Uniform


Appellant's Brief                                                                Page 34
Declaratory Judgment Act waives the PUC's sovereign immunity to a suit

challenging its statutory authority. Moreover, the doctrines of primary or exclusive

jurisdiction do not apply to Appellant's lawsuit.        Those doctrines are either

inapplicable or all available administrative remedies have been exhausted.

Accordingly, Appellant's pleadings clearly allege facts that affirmatively

demonstrated the trial court's subject matter jurisdiction.

       6.3    Nevertheless, the trial court erroneously granted Appellees' pleas to

the jurisdiction, and dismissed Appellant's claims with prejudice.          Therefore,

Appellant brings this interlocutory appeal, respectfully requesting that the Court of

Appeals reverse the trial court order granting the Appellees' pleas to the

jurisdiction and remand this lawsuit for further proceedings.

                                         VII.
                                   ARGUMENT

A.     Pleas to the Jurisdiction- Standard of Review.

       6.4    A defendant seeking dismissal of a case for want of jurisdiction may

file a plea to the jurisdiction challenging the plaintiffs pleadings or challenging the

existence of jurisdictional facts. See City of Waco v. Kirwan, 298 S.W.3d 618,

621-22 (Tex.2009). Where, as here, pleas to the jurisdiction challenge the

plaintiffs pleadings, courts determine whether the plaintiff has alleged facts that

affirmatively demonstrate the court's jurisdiction to hear the cause. See Texas Dep't

Appellant's Brief                                                              Page 35
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). This is a

question of law which appellate courts review de novo. Id. To determine whether

the plaintiff has met this burden, courts liberally construe the pleadings, taking all

factual assertions as true and looking to the pleader's intent. City of Ingleside v.

City of Corpus Christi, 469 S.W.3d 589, 590 (Tex.2015) (per curiam). If the

pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court's jurisdiction but do not affirmatively demonstrate incurable defects in

jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be

afforded the opportunity to amend. Texas A & M Univ. Sys. v. Koseoglu, 233

S.W.3d 835, 839 (Tex. 2007); Miranda, 133 S.W.3d at 227. Only if the pleadings

affirmatively negate jurisdiction should the plea to the jurisdiction be granted

without affording the plaintiff an opportunity to re-plead. Miranda, 133 S.W.3d at

227.

       6.5    If a plea to the jurisdiction challenges the existence of jurisdictional

facts, courts may consider relevant evidence submitted by the parties when

necessary to resolve the jurisdictional issues raised. Id. If the evidence creates a

fact question regarding the jurisdictional issue, then the trial court cannot grant the

plea to the jurisdiction, and the fact issue will be resolved by the fact finder.

However, if the relevant evidence is undisputed or fails to raise a fact question on


Appellant's Brief                                                              Page 36
the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a

matter of law. Id, at 227-28. This standard mirrors the standard of review for

summary judgments; the courts therefore take as true all evidence favorable to the

plaintiff, indulging every reasonable inference and resolving any doubts in its

favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009).

B.     The trial court has jurisdiction pursuant to Article ill, § 52(a) and
       Article V, § 8, of the Texas Constitution.

       6.6    The Texas Constitution places limits on the power of a local

government to transfer funds to any other entity. Article III, section 52(a) of the

Texas Constitution ("Section 52(a)") provides that the legislature may not

authorize any county, city, or other political corporation of the state "to lend its

credit or to grant public money or thing of value in aid of, or to any individual,

association or corporation whatsoever." Tex. Const. art. III, § 52(a); see also id.

art. XI, § 3 (similar provision). These provisions bar donations of funds from one

governmental entity to another, as well as donations from governmental entities to

private entities. See e.g., Harris Cnty. Flood Control Dist. v. Mann, 140 S.W.2d

1098 (Tex. 1940); San Antonio Indep. Sch. Dist. v. Board of Trs. of San Antonio

Elec. & Gas Sys., 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947, writ refd n.r.e.);

Tex. Att'y Gen. Op. No. JC-0335 (2001).

       6. 7   When a political subdivision transfers funds, it must be for a public

Appellant's Brief                                                            Page 37
purpose with a clear public benefit received in return. See Mann, 140 S.W.2d at

258-59. To insure that the political subdivision receives its consideration, viz.,

accomplishment of the public purpose, the political subdivision must retain some

degree of control over the performance of the contract. Key v. Comm'rs. Court of

Marion Cnty., 727 S.W.2d 667, 669 (Tex. App.-Texarkana 1987, no writ).

Hence, a political subdivision cannot grant funds to a municipal corporation, but it

may contract with it to provide services or accomplish a purpose that the political

subdivision is authorized to provide. See Tex. Att'y Gen. Op. No. JC-0335 (2001).

       6.8    Water districts are political subdivisions. See Tex. Const. art. XVI, §

59; Willacy Cnty. Water Control & Improvement Dist. No. 1 v. Abendroth, 177

S.W.2d 936 (Tex. 1944). As such, the Texas Constitution prevents a special utility

district from making a gift or grant of public funds or property to another public or

private entity.     Therefore, Article III, section 52(a) of the Texas Constitution

applies to the actions of CTSUD and its Directors.

       6.9    A contract to do a thing which cannot be performed without a

violation of the law is void. Philadelphia Indem. Ins. Co. v. White, No. 14-0086,

2016 WL 2848487, at *11 (Tex. May 13, 2016); Lewis v. Davis, 199 S.W.2d 146,

148-49 (Tex. 1947); Morales v. Hidalgo Cty. Irrigation Dist. No. 6, No. 13-14-

00205-CV, 2015 WL 5655802, at *2 (Tex. App.-Corpus Christi Sept. 24, 2015,


Appellant's Brief                                                             Page 38
pet. denied) (examining whether employment contract authorized a payment of

public funds in violation of Section 52(a)); Plano Surgery Ctr. v. New You Weight

Mgmt. Ctr., 265 S.W.3d 496, 501 (Tex.App.-Dallas 2008, no pet.). Therefore, a

contract that violates Section 52(a) is void. See e.g., Magnolia Bend Volunteer

Fire Dep't, Inc. v. McDonnell, No. 09-03-051CV, 2003 WL 22922799, at *1 (Tex.

App.-Beaumont Dec. 11, 2003, no pet.) (holding that deed placing title to the

property in fire department's name was void as prohibited by Section 52(a)); see

also Hendee v. Dewhurst, 228 S.W.3d 354, 378 (Tex. App.-Austin 2007, pet.

denied) (recognizing that taxpayers have standing to sue in equity to enjoin the

illegal expenditure of public funds, even without showing a distinct injury).

       6.10 It is fundamental that the Constitution is the paramount law of the

state. Jones v. Ross, 173 S.W.2d 1022, 1024 (Tex. 1943). Accordingly, common

law doctrine like sovereign immunity generally may not abrogate the Texas

Constitution. See e.g., Frasier v. Yanes, 9 S.W.3d 422, 426 (Tex. App.-Austin

1999, no pet.) (holding sovereign immunity does not bar cause of action under

Article III, Section 52e of the Texas Constitution); see also Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003) (holding that consent to suit

may be found in a constitutional provision).      Certain provisions of the Texas

Constitution are self-executing or "self-enacting," and thus provide a right of


Appellant's Brief                                                               Page 39
action against the government for violations without the need for legislative

consent. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980); Spring

Branch Mgmt. Dist. v. Valco Instruments Co., L.P., No. 01-11-00164-CV, 2012

WL 2923151, at *8 (Tex. App.-Houston [1st Dist.] July 12, 2012, no pet.); Nueces

Cty. v. Ferguson, 97 S.W.3d 205, 221 (Tex. App.-Corpus Christi 2002, no pet).

Such an action may seek declaratory and injunctive relief for violations of the

Texas Constitution. City of Beaumont v. Bouillion, 896 S.W.2d 143, 149

(Tex.1995) (stating that "suits for equitable remedies for violations of

constitutional rights are not prohibited"); Spring Branch Mgmt. Dist. v. Valco

Instruments Co., L.P., 2012 WL 2923151, at *8 (holding plaintiff was entitled to

seek declaratory and injunctive relief for violations of the Texas Constitution); De

Leon v. City of El Paso, 353 S.W.3d 285, 290-91 (Tex.App.-El Paso 2011, no pet.)

(holding that city was not immune from equal protection claim for "declaratory

and injunctive relief' because "governmental immunity does not bar suits for

equitable relief for violations of the Texas Constitution"); Garcia v. Corpus Christi

Civil Serv. Bd., No. 13-07-00585-CV, 2009 WL 2058892, at *2 (Tex. App.-Corpus

Christi July 16, 2009, no pet.); Texas Tech Univ. Health Scis. Ctr. v. Rao, 105

S.W.3d 763, 767 (Tex. App. 2003-Amarillo, pet. dism'd); Bohannon v. Texas Bd.

of Criminal Justice, 942 S.W.2d 113, 118 (Tex.App.-Austin 1997, writ denied)


Appellant's Brief                                                             Page 40
("Although there is no cause of action for damages, a plaintiff whose constitutional

rights have been violated may sue for equitable relief').

       6.11 A constitutional provision is self-executing or self-enacting if it

requires no legislative action to put it into force and effect. Ehlinger v. Rankin, 9

Tex. Civ. App. 424, 426, 29 S.W. 240, 241 (1895). Such provisions are also said

to be self-enacting when they supply a rule sufficient to protect the right given or

permit enforcement of the duty imposed. Frasier v. Yanes, 9 S.W.3d 422, 426

(Tex. App. 1999); Motorola v. Tarrant County Appraisal Dist., 980 S.W.2d 899,

902 (Tex.App.-Fort Worth 1998, no pet.).         Article III, Section 52(a) is self-

executing or self-enacting because it is a clear constitutional prohibition that

requires no legislative action to put it into force and effect, and imposes a duty of

compliance that is readily capable of enforcement. See e.g., Mitchell Cty. v. City

Nat. Bank, 43 S.W. 880, 881 (Tex. 1898) (recognizing that section 9 of article 8

and section 7 of article 11 are self-executing as all laws in conflict with these

prohibitions are void). Accordingly, the courts have consistently exercised their

jurisdiction to determine whether Section 52(a) has been violated. See e.g., Texas

Mun. League Intergovernmental Risk Pool v. Texas Workers' Comp. Comm'n, 74

S.W.3d 377, 383 (Tex. 2002) (discussing three-part test courts have developed to

determine if act or payment accomplishes a public purpose consistent with section


Appellant's Brief                                                            Page 41
52(a)); Davis v. City of Lubbock, 326 S.W.2d 699, 710 (Tex. 1959); Byrd v. City of

Dallas, 6 S.W.2d 738, 740 (Comm'n App. 1928); Morales v. Hidalgo Cty.

Irrigation Dist. No. 6, 2015 WL 5655802, at *2; Key v. Commissioners Court of

Marion Cty., 727 S.W.2d at 668. Therefore, Section 52(a) provides a right of

action against the government for violations of that provision without the need for

legislative consent or waiver of immunity.

       6.12 Appellant's lawsuit alleges that CTSUD transferred its public assets to

the City in violation Section 52(a), and that the Asset Transfer Agreement through

which the transfer was effectuated is void. See CR 494-496.                Accordingly,

Appellant     requests   declaratory   and   injunctive   relief setting     aside   the

unconstitutional asset transfer and voiding the Asset Transfer Agreement. CR 509-

517. As explained above, CTSUD's transfer of assets in violation of Section 52(a)

provided Appellant the right to bring an action for declaratory and injunctive relief

against Appellees for unconstitutional acts without the need for legislative consent

or waiver of immunity.       Stated another way; Section 52(a) is a constitutional

waiver of Appellees' governmental immunity. Therefore, the trial court erred in

granting the Order dismissing Appellant's claims for injunctive and declaratory

relief for violations of Section 52(a), Texas Constitution.




Appellant's Brief                                                               Page 42
C.     Appellant adequately pled claims against the CTSUD and City
       concerning constitutional violations.

       6.13 Pleaders are generally required to allege facts that affirmatively

demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Bus. v. Texas

Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).               In a suit against a

governmental unit the pleader must affirmatively demonstrate the court's

jurisdiction by alleging a valid waiver of immunity or that immunity is

inapplicable. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.

2003); Miller v. S. E. Texas Reg'l Planning Comm'n, No. 03-11-00817-CV, 2013

WL 3724716, at *3 (Tex. App.-Austin July 11, 2013, no pet.). To determine if the

plaintiff has met that burden, courts consider the facts alleged by the plaintiff and,

to the extent it is relevant to the jurisdictional issue, the evidence submitted by the

parties. Id; Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868

(Tex.2001).

       6.14 Appellant's lawsuit alleges that CTSUD transferred its public assets to

the City in violation of Section 52(a) and that the Asset Transfer Agreement

through which the transfer was effectuated is void. See CR 494-496. As explained

immediately above, Section 52(a) provides citizens such as Appellants the right to

bring an action for declaratory and injunctive relief against Appellees for violations

of Section 52(a) without the need for legislative consent or waiver of immunity.

Appellant's Brief                                                              Page 43
Accordingly, Appellant's pleadings affirmatively demonstrated the court's

jurisdiction to hear the cause and that governmental immunity was either waived or

inapplicable.

       6.15 The Chisholm Defendants' pleas to the jurisdiction, meanwhile, assert

without explanation, that the District and City are "immune from suit." CR 5, 16.

Shortly before the hearing on Appellee's pleas to the jurisdiction, the Chisholm

Defendants filed a brief in support of their pleas to the jurisdiction. See CR 38 et

seq.   In that brief, the Chisholm Defendants elaborate that "Plaintiff cites no

statutory authority that clearly and unambiguously waives the City's or District's

immunity."      CR 49.   The Chisholm Defendants wholly failed to consider or

acknowledge that governmental immunity has been waived and/or is inapplicable

under Section 52(a).      Accordingly, the Chisholm Defendants' pleas to the

jurisdiction as to CTSUD's and the City's alleged governmental immunity were

erroneous, as was the trial court's Order granting the Chisholm Defendants' pleas

against the alleged violation of the Texas Constitution.

       6.16 The Chisholm Defendants also erroneously argued that the City and

CTSUD are immune from Appellant's suit for declarations invalidating the Asset

Transfer Agreement.      CR 49-51.      In making this argument, the Chisholm

Defendants relied upon Texas Nat. Res. Conservation Comm'n v. IT-Davy, 74


Appellant's Brief                                                            Page 44
S.W.3d 849, 855-856 (Tex. 2002). Their reliance was misplaced. The portion of

the IT-Davy opinion cited by the Chisholm Defendants concerns whether sovereign

immunity bars a general contractor from suing a state agency for breach of

contract. See id. at 851-852.   The court held that immunity does bar such a suit,

and that "private parties cannot circumvent the State's sovereign immunity from

suit by characterizing a suit for money damages, such as a contract dispute, as a

declaratory-judgment claim." Id. at 856. Hence, the pertinent holding in IT-Davy

is that the UDJA does not provide courts with subject-matter jurisdiction over

contract damage claims that are otherwise barred by sovereign or governmental

immunity. However, as explained above, Section 52(a) provides Appellant an

independent right to bring an action for declaratory and injunctive relief against

Appellees for violations of Section 52(a) without the need for legislative consent or

waiver of immunity. Appellant is not seeking damages against the Appellees. To

the contrary, Appellant is seeking to enjoin an illegal act by Appellees. The use of

a contract to consummate the illegal act does not exclude the illegal act from

judicial scrutiny. Violations of the Texas Constitution and ultra vires acts cannot

be covered by a contractual fig leaf to prevent the light of truth from exposing

these wrongful acts. Accordingly, IT-Davy is not applicable and does not support

the Chisholm Defendant's claim that the City and CTSUD are immune from


Appellant's Brief                                                             Page 45
Appellant's request for declaratory relief. Therefore, it was error for the trial court

to grant the Order dismissing Appellant's claims for injunctive and declaratory

relief for violations of Section 52(a).

D.     Trial court has jurisdiction over Appellant's claims against PUC.

       6.17 Appellant's lawsuit includes claims that the PUC lacks authority and

jurisdiction to: (a) take action that would render CTSUD (a special utility district

created under legislative authority to provide water utility service within its own

boundaries) legally incapable of carrying out its statutory purpose; (b) take action

that would nullify the District landowners' and consumers' statutory right to vote

for a Board of Directors with authority to manage the District and govern its

provision of water utility service; (c) take action that would effectively dissolve the

District; or (d) process or approve an application that would effectively perform

the three aforementioned actions. See e.g., CR 511-512.

       6.18 Georgetown and CTSUD are retail public utilities. See Tex. Water

Code § 13.002(19). Each was granted a CCN to provide retail water utility service

to their respective service areas. A retail public utility generally may not furnish,

make available, render, or extend retail water utility service to any area to which

retail water utility service is being lawfully furnished by another retail public

utility without first having obtained a CCN that includes the area in which the


Appellant's Brief                                                              Page 46
consuming facility is located. /d. § 13.242(a); see also id. §§ 13.252, 13.254. In

other words, a CCN provides a retail public utility with the exclusive right (i.e., a

monopoly) to provide retail water service within its certificated territory.

Therefore, revoking CTSUD's CCN and amending Georgetown's CCN to include

CTSUD's service area would render the District legally incapable of providing its

own constituents with water utility service.

         6.19 The District is a political subdivision that was created and conferred

with statutory authority to provide its constituents with water utility service. See

e.g., id. §§ 49.211, 65.012.      Accordingly, the laws of this State provide the

landowners, consumers and qualified voters of CTSUD with the statutory right to

vote for the management of their district. /d.§§ 65.022, 65.101-65.103. CTSUD

does not encompass any portion of the incorporated area of Georgetown, and vice

versa.    Accordingly, a PUC order revoking the District's CCN and amending

Georgetown's CCN to include the District's service area would: (i) render the

District legally incapable of providing water utility service to its constituents; (ii)

preclude the District and its Directors from governing the manner in which water

utility service is provided to their constituents; (iii) nullify the District landowners'

and consumers' statutory right to vote on water utility issues affecting them; and

(iv) would effect an illegal dissolution of the District.


Appellant's Brief                                                                Page 47
       6.20 Chapter 13 of the Water Code regulates water rates and services. See

id §§ 13.001 - 13.523.       Subchapter G deals specifically with certificates of

convenience and necessity. See id. §§ 13.241- 13.257.

       6.21 The 83rd Texas Legislature adopted acts transferring the economic

regulation of water and sewer service from the TCEQ to the PUC. See Act of May

13, 2013, 83rd Leg., R.S., ch. 170 (HB 1700), § 2.96; 2013 Tex. Gen. Laws 725,

730; Act of May 13, 2013, 83rd Leg., R.S. ch. 171 (SB 567), § 96, 2013 Tex. Gen.

Laws 772.      Accordingly, effective September 1, 2014, Chapter 13 transferred

jurisdiction over CCN applications from the TCEQ to the PUC. Consequently, in

order to obtain a CCN for a particular area, a retail public utility generally must file

an application requesting the PUC to either grant or amend its CCN. /d. §§ 31.241

- 13.244. Likewise, an application must be filed to revoke a retail public utility's

CCN (i.e., exclusive right) to provide water utility service to any portion of its

service territory. See id. § 13.254.

       6.22 The PUC was only granted authority to exercise economic regulation

over water utility services. Chapter 13 of the Water Code does not govern the

creation, operation, or governance of special utility districts. Those matters are

addressed by Chapters 49 (General Law Districts) and 65 (Special Utility

Districts). See id. 65.001(4), 65.011 - 65.023. For example, Subchapter 65(H)


Appellant's Brief                                                               Page 48
governs the process manner in which special utility districts may be consolidated

or dissolved. See id. §§ 65.723- 65.732. These statutes do not provide the PUC

with any jurisdiction or authority in the dissolution or regulation of districts.

Rather, Chapters 49 and 65 provide the Texas Commission on Environmental

Quality with broad regulatory authority over districts.       See id. §§ 49.001(2)

(defining "commission" as the Texas Natural Resource Conservation Commission

(a predecessor agency to TCEQ) and using "commission" throughout to identify

the agency responsible for carrying out the duties of regulating general law

districts); 65.001(4) (also defining "commission" as the Texas Natural Resource

Conservation Commission and using "commission" throughout to identify the

agency responsible for carrying out the duties of regulating an special utility

districts). Accordingly, the PUC generally lacks jurisdiction to regulate special

utility districts. Therefore, the PUC has no jurisdiction to take regulatory action in

a manner that: (i) renders the District legally incapable of providing water utility

service to its constituents; (ii) precludes the District and its Directors from

govemmg the manner in which water utility service is provided to their

constituents; (iii) nullifies the District landowners' and consumers' statutory right

to vote on water utility issues affecting them; or (iv) effects the District's

dissolution.


Appellant's Brief                                                             Page 49
       6.23 The PUC, nevertheless, claims that provisions in Chapter 13 of the

Water Code provide it with jurisdiction to wholly revoke the District's CCN and

amend Georgetown's CCN to include the District's entire service area. CR 34.

This would exceed the PUC's statutory grant of economic regulatory authority.

This action would also improperly encroach upon the authority of special utility

districts (including their directors and voters who elect them) to operate, and the

TCEQ's     statutory regulatory authority over such districts.          Accordingly,

Appellant's pleadings include a challenge to the PUC interpretation of the statutes

in Chapter 13 governing the revocation and amendment of water CCN's, including

its construction of the acts of the 83rd Legislature that transferred the functions

relating to the economic regulation of water and sewer service from the TCEQ to

the PUC (i.e., HB 1600 and SB 567). See CR 499-506.

       6.24 Appellant's pleadings also assert that the PUC lacks the authority and

jurisdiction to revoke the District's CCN and amend Georgetown's CCN to include

the District's service area, and that the Commissioners, in their official capacities,

have acted ultra vires by adopting such an order.

       6.25 The Uniform Declaratory Judgment Act requires that the relevant

governmental entities be made parties to a declaratory judgment action that

challenges the validity of ordinances or statutes, and thereby waives sovereign


Appellant's Brief                                                              Page 50
immunity. Tex. Civ. Prac. & Rem. Code § 37.006(b); Texas Dep't of Transp. v.

Sefzik, 355 S.W.3d 618, 622 (Tex. 2011); City of El Paso v. Heinrich, 284 S.W.3d

366, 373 n. 6 (Tex. 2009). Statutory challenges include claims that a statute is

invalid for constitutional or non-constitutional reasons, and claims seeking

interpretation or clarification of a statute. See Tex. Lottery Comm 'n v. First State

Bank of DeQueen, 325 S.W.3d 628, 634-635 (Tex. 2010); City of Elsa v. M.A.L.,

226 S.W.3d 390, 391-92 (Tex. 2007); Lone Star Coli. Sys. v. Immigration Reform

Coal. of Texas (IRCOT), 418 S.W.3d 263, 271 (Tex. App.-Houston [14th Dist.]

2013, pet. denied); Town of Flower Mound v. Rembert Enters., 369 S.W.3d 465,

474 (Tex. App.-Fort Worth 2012, pet. denied); Gatesco Q.M., Ltd. v. City of

Houston, 333 S.W.3d 338, 347-48 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

It is also well settled that suits asserting that government officers acted without

legal authority or that seek to compel governmental officials to comply with

statutory or constitutional provisions are ultra vires suits and are not subject to

pleas of sovereign or governmental immunity. Texas Dep't of Ins. v. Reconveyance

Servs., Inc., 306 S.W.3d 256, 258 (Tex. 2010); Heinrich, 284 S.W.3d at 372.

Courts may exercise jurisdiction over lawsuits where both type of claims are

combined. Lone Star Coli. Sys., 418 S.W.3d at 271 (citing De Los Santos v. City of

Robstown, No. 13-11-00278-CV, 2012 WL 6706780, at *3-8 (Tex. App.-Corpus


Appellant's Brief                                                             Page 51
Christi Dec. 13, 2012, no pet.)).

       6.26 Appellant's First Amended Petition includes a declaratory judgment

action challenging the PUC's interpretation of the statutes in Chapter 13 governing

the revocation and amendment of water CCN' s, including its construction of the

acts of the 83rd Legislature that transferred the functions relating to the economic

regulation of water and sewer service from the TCEQ to the PUC (i.e., HB 1600

and SB 567). The PUC claims jurisdiction under these statutes and thus is a

relevant governmental entity which shall be made a party to Appellant's

declaratory judgment action. Accordingly, the PUC's claim that it is immune from

this suit is incorrect and inapposite.   The Uniform Declaratory Judgment Act

provides a cause of action to seek declaratory and injunctive relief from the

improper construction of these legislative acts by the PUC.          This improper

construction has usurped the rights of the Appellant and resulted in ultra vires acts

by the PUC. Consequently, the PUC's Plea to the Jurisdiction should have been

denied.    Therefore, the trial court erred when it entered the Order dismissing

Appellant's claims for declaratory and injunctive relief against the PUC and its

Commissioners.

E.     Appellant's ultra vires      claims    do   not implicate sovereign        or
       governmental immunity.



Appellant's Brief                                                             Page 52
       6.27 A government official commits an ultra vires act when he or she acts

without lawful authority. Heinrich, 284 S.W.3d at 372. An official acts without

lawful authority when he violates state law, acts beyond the limits of his authority,

or misinterprets a law he is charged with administering. See id.; Tex. Educ. Agency

v. Leeper, 893 S.W.2d 432 (Tex.1994) (suit challenging state officials' construction

of compulsory school-attendance law); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,

405 (Tex.1997) ("A private litigant does not need legislative permission to sue the

State for a state official's violations of state law."); Cobb v. Harrington, 190

S.W.2d 709, 712 (Tex. 1945) (suit to declare government officials were wrongfully

compelling plaintiffs to pay certain taxes).

       6.28 Governmental immunity only extends to those government officers

who are acting consistently with the law. Houston Belt & Terminal Ry. Co. v. City

of Houston, No. 14-0459, 2016 WL 1312910, at *6 (Tex. Apr. 1, 2016); Heinrich,

284 S.W.3d at 372.         Accordingly, while governmental immunity provides

protection to the state and its officers, it does not bar a suit against a government

officer for acting outside his authority-i.e., an ultra vires suit. Houston Belt &

Terminal Ry. Co., 2016 WL 1312910, at *3; Tex. Parks & Wildlife Dep't v. Sawyer

Trust, 354 S.W.3d 384, 393 (Tex.2011). To fall within this "ultra vires exception,"

a suit must allege that the officer acted without legal authority or failed to perform


Appellant's Brief                                                             Page 53
a purely ministerial act. Heinrich, 284 S.W.3d at 372; Fed. Sign, 951 S.W.2d at

404.    As a general rule, "a public officer has no discretion or authority to

misinterpret the law." Houston Belt & Terminal Ry. Co., 2016 WL 1312910, at *5

(quoting In re Smith, 333 S.W.3d 582, 585 (Tex.2011) (orig. proceeding)). Thus, a

suit alleging that an officer's exercise of judgment or limited discretion without

reference to, or in conflict with, the constraints of the law authorizing the official

to act falls within the "ultra vires exception." Id; Heinrich, 284 S.W.3d at 372.

       6.29 Appellant's pleadings assert that the CTSUD Directors and Public

Utility Commissioners are acting without legal authority.        With regard to the

Commissioners, Appellant's First Amended Petition alleges that they have

engaged in ultra vires acts while processing and approving Georgetown's

Application. CR 506-507, 512-514. In support of this ultra vires claim the First

Amended Petition further alleges that the Commissioners have engaged in ultra

vires acts by processing and approving an application that would unlawfully: (i)

render the District legally incapable of providing water utility service to its

constituents; (ii) nullify the District landowners' and consumers' statutory right to

vote on water utility issues; and (iii) affect a dissolution of the District. CR 507,

509-510. These ultra vires claims were made after the PUC filed its plea to the

jurisdiction, which argued that Appellant's claims must be made against the


Appellant's Brief                                                             Page 54
Commissioners rather than the PUC.         See CR 32-33; cf 506-507.         The PUC,

nevertheless, verbally requested dismissal of Appellant's ultra vires claims against

the Commissioners without any explanation or authority and further declined the

trial court's invitation to submit a written response or plea to the jurisdiction

regarding Appellant's ultra vires claims.         CR 66-68.      The Commissioners

presented no basis for a dismissal of the ultra vires claims against them.

Accordingly, the PUC failed to present any jurisdictional challenge to those claims,

and it was error for the court to enter the Order dismissing the ultra vires claims

against the PUC Commissioners.

       6.30 As to the CTSUD Directors, Appellant alleges that the Directors acted

ultra vires by approving the Asset Transfer Agreement and the amendments

thereto. CR 499. In support of this ultra vires claim, Appellant further alleges that

the Directors have engaged in ultra vires acts in violation of the Texas

Constitution, the Texas Water Code and other statutes by approving: (1) an

agreement to illegally grant CTSUD's water system and other public assets to the

City; (2) an agreement to illegally dissolve CTSUD; (3) an agreement to transfer

illegally CTSUD's CCN to the City; and (4) expenditure of public funds to obtain

the illegal dissolution of the District and the illegal transfer its assets to the City.

CR 509. As briefed above, a lawsuit alleging that a government official acted


Appellant's Brief                                                               Page 55
without legal authority falls within the "ultra vires exception" to sovereign and

governmental immunity.       Appellant's pleadings clearly allege that the District

Directors and Commissioners acted ultra vires. Consequently, it was error for the

trial court to enter the Order dismissing Appellant's ultra vires claims for

declaratory and injunctive relief against the District Directors.

F.     Chisholm Defendants raised flawed arguments concerning Appellant's
       ultra vires claims.

       6.31 The Chisholm Defendants acknowledge that ultra vires suits are not

barred by governmental immunity. CR 51. Accordingly, the basis of their plea to

the jurisdiction concerning Appellant's ultra vires suit is their argument that,

"Plaintiff does not allege any facts that affirmatively demonstrate the court's

jurisdiction with regard to its claims that the Directors entered into an illegal

contract, illegally dissolved the District, or illegally granted public funds." CR 52

(emphasis added). However, this argument and the Chisholm Defendants' pleas to

the jurisdiction are erroneous.

       6.32 Appellant's pleadings allege that the District Directors approved an

Agreement (and amendments thereto) to provide the City with: (i) CTSUD's retail

water utility system; (ii) virtually all of CTSUD assets which the City valued at

more than $70 million; (iii) CTSUD's contractual right to more than 11,000 acre

feet of raw water per annum from the Brazos River Authority; and (iii) CTSUD's

Appellant's Brief                                                             Page 56
CCN. See CR 485-490, 495-496. Appellant's pleadings additionally allege that

CTSUD consummated the asset transfer. CR 489. Accordingly, Appellant alleges

that the Director's approval of the Agreements caused CTSUD to be physically,

financially, and legally incapable of providing retail water utility service to the

District's customers and landowners. Hence, Appellant alleges that the Director's

approval of the Agreement effectively dissolved the District, which has since

ceased operating as a water utility.      Consequently, Appellant alleges that the

Director's acts resulted in the District granting virtually all of its public funds and

property without a lawful purpose or clear public benefit received in return.

Moreover, Appellant alleges that the asset transfer left the District without

effective control over the provision of retail water utility service within the

District's territory. These acts contravene the constitutional and statutory duties of

the District Directors. Therefore, Appellant alleges that the Director's acted ultra

vires in approving the Agreement because the Directors exceeded their statutory

authority and violated Section 52(a), Texas Constitution.

       6.33 Appellant's ultra vires claims include that the Director's lacked

statutory authority to approve the Agreement. Particularly, Appellant alleges the

Directors lacked authority to contract for the wholesale conveyance of CTSUD's

assets and further lacked authority to dissolve the District.


Appellant's Brief                                                              Page 57
       6.34 CTSUD is a special utility district created pursuant to Chapter 65 of

the Texas Water Code and is considered a conservation and reclamation district

under Article XVI, Section 59, of the Texas Constitution. Tex. Const. art. XVI, §

59; Tex. Water Code § 65.011. Such a district may be created "to purchase, own,

hold, lease, and otherwise acquire sources of water supply; to build, operate, and

maintain facilities for the transportation of water; and to sell water to towns, cities,

and other political subdivisions of this state, to private business entities, and to

individuals." Tex. Water Code § 65.012(1). A district has the functions, powers,

authority, and rights that will permit accomplishment of the purposes for which it

is created. !d. § 65.201. Their assets and authorities may not be transferred or sold

for purposes other than to carry out their lawful rights and duties. See id. § 49.213;

Tex. Gov't Code § 791.011(c). Moreover, their assets may not be transferred in

violation of Section 52( a). Tex. Const. art. III, § 52( a).

              1.     CTSUD had no legal authority to enter the Agreement.

       6.35 In arguing that Appellant did not allege any facts that affirmatively

demonstrate the court's jurisdiction, the Chisholm Defendants claim provisions in

Chapter 49 of the Water Code provide the District had legal authority to enter into

the Agreement. See CR 52-53. However, the Chisholm Defendants are incorrect.

       6.36 "[Chapter 49] applies to all general and special law districts to the


Appellant's Brief                                                               Page 58
extent that the provisions of this chapter do not directly conflict with a provision in

any other chapter of this code or any Act creating or affecting a special law district.

In the event of such conflict, the specific provisions in such other chapter or Act

shall control." Tex. Water Code § 49.002 (emphasis added).             Section 49.213

addressed the authority to issue contracts. It authorizes a district to enter into

contracts "the board may consider desirable, fair, and advantageous for. .. the

exercise of any other rights, powers, and duties granted to a district."          !d. §

49.213(c)(7). As such, section 49.213 confirms that districts can enter contracts

only to carry out their lawful rights, powers and duties.

       6.37 The Chisholm Defendants, meanwhile, claim Sections 49.213(a) and

49.227 provides the District with authority to transfer all of its assets. They do not.

Rather, both of those sections address the authority of a district to act jointly with

another entity in the performance of the district's lawful duties. Section 49.213(a)

provides:

       A district may contract with a person or any public or private entity
       for the joint construction, financing, ownership, and operation of any
       works, improvements, facilities, plants, equipment, and appliances
       necessary to accomplish any purpose or function permitted by a
       district, or a district may purchase an interest in any project used for
       any purpose or function permitted by a district.

       !d. § 49.213(a) (emphasis added).

Section 49.227, entitled "Authority to Act Jointly," similarly provides "[a] district

Appellant's Brief                                                              Page 59
or water supply corporation may act jointly with any other person or entity, private

or public, whether within the State of Texas or the United States, in the

performance of any of the powers and duties permitted by this code or any other

laws." !d. § 49.227 (emphasis added). These statutory provisions do not authorize

a district to transfer all of its assets, or delegate its powers and responsibilities to

another entity. Rather, they clearly contemplate that a district may act jointly with

another entity in the performance of the district's lawful duties. Statutes may not

be construed to accomplish an unconstitutional result. Appellant asserts that the

Agreement renders CTSUD incapable of performing its lawful duties and violates

Section 52(a). Sections 49.213(a) and 49.227 cannot authorize this Agreement,

and Appellant is entitled to a hearing on the merits to present evidence of this

constitutional violation.

       6.38 The Chisholm Defendants also cite Section 49.226 and Section

791.026(a) of the Interlocal Cooperation Act as authority for the Agreement.

Again, they are incorrect. Section 49.226 addresses the manner in which real and

personal property may be sold or exchanged. Subsection 49.226(b) provides:

       Any property dedicated to or acquired by the district without
       expending district funds may be abandoned or released to the original
       grantor, the grantor's heirs, assigns, executors, or successors upon
       terms and conditions deemed necessary or advantageous to the district
       and without receiving compensation for such abandonment or release.
       District property may also be abandoned, released, exchanged, or

Appellant's Brief                                                               Page 60
       transferred to another district, municipality, county, countywide
       agency, or authority upon terms and conditions deemed necessary or
       advantageous to the district. Narrow strips of property resulting from
       boundary or surveying conflicts or similar causes, or from
       insubstantial encroachments by abutting property owners, or property
       of larger configuration that has been subject to encroachments by
       abutting property owners for more than 25 years may be abandoned,
       released, exchanged, or transferred to such abutting owners upon
       terms and conditions deemed necessary or advantageous to the
       district. Chapter 272, Local Government Code, does not apply to this
       section.

       /d. § 49.226(b).

       6.39 Section 49 .226(b) does not grant contracting authority or authorize a

district to transfer assets in a manner that violates Section 52(a). Nor does Section

49 .226(b) authorize a special utility district to engage in any act that is inconsistent

with purposes for which it was created under Chapter 65.            Cf. id. 65.201 ("A

district has the functions, powers, authority, and rights that will permit

accomplishment of the purposes for which it is created."). Accordingly, Section

49.226(b) does not authorize this Agreement, because (as Appellant's allege) it

renders CTSUD incapable of providing retail water utility service to the very

constituents it was created to serve.

       6.40 Section 791.026 of the Interlocal Cooperation Act likewise provides

no authority for the Agreement. That Act permits various local governments to

contract among themselves for the performance of a governmental function or


Appellant's Brief                                                                Page 61
service that each party to the contract is authorized to perform individually. See

Tex. Gov't Code § 79l.Oll(c). The Act's purpose is to increase efficiency and

effectiveness of local governments by expressly authorizing them to contract with

one another and with agencies of the state. See id. § 791.001; City of The Colony

v. N. Texas Mun. Water Dist., 272 S.W.3d 699, 728 (Tex. App. - Fort Worth,

2008, no pet.). The Act itself does not grant additional powers to any government.

35 Tex. Prac., County And Special District Law § 5.14 (2d ed.). Section 791.026,

provides in pertinent part:"

       (a) A municipality, district, or river authority of this state may
       contract with another municipality, district, or river authority of this
       state to obtain or provide part or all of:        (1) water supply or
       wastewater treatment facilities;



       (g) The powers granted by this section prevail over a limitation
       contained in another law.

       Tex. Gov't Code § 791.026(a)(1), (g).

Reviewing this statute, the Third and Fourth Courts of Appeals have acknowledged

that this provision does not authorize retail public water utilities to contract around

the limitations found in the Water Code. In Bexar Metro. Water Dist. v. Texas

Com'n on Envtl. Quality, 185ch S.W.3d 546 (Tex. App.-Austin 2006, pet.

denied), the Third Court of Appeals acknowledged that interlocal contracts may be


Appellant's Brief                                                              Page 62
employed to fulfill the obligations of a CCN holder, but do not prevail over the

provisions in the Water Code. See Bexar Metro, 185 S.W.3d at 552 ("To be sure,

the Interlocal Cooperation Act does not supersede the specific requirements for

certificate [of convenience and necessity] applicants. It makes clear, however, the

legislature's intent to allow municipalities to obtain the required capabilities to

operate and construct water systems through contracts with river authorities and its

belief that these contracts increase the efficiency and effectiveness of local

government.") (emphasis added). The Fourth Court of Appeals similarly held that

the Interlocal Cooperation Act does not provide water utilities with greater rights

or obligations than those afforded the Water Code; providing as follows:

       Fort Worth also asserts that even if the Commission has jurisdiction
       over wholesale wastewater rates set by contracts, the Commission
       cannot alter a rate set by a contract between two cities, because
       Section 791.026 of the Texas Government Code (the "Interlocal
       Cooperation Act") places such contract rates beyond the
       Commission's jurisdiction. The lnterlocal Cooperation Act merely
       allows municipalities to enter into contracts with each other. The
       statutory provision that the power to enter into contracts "prevails
       over a limitation in any other law" refers to other statutes and charters
       that might directly prohibit a municipality from signing contracts and
       does not preclude later legislative action regarding such a contract.
       The Water Code gives the Commission jurisdiction over contractual
       rates, including contractual rates agreed upon between municipalities.

       Texas Water Comm'n v. City of Fort Worth, 875 S.W.2d 332, 335
       (Tex. App.- Fort Worth, 1994 writ denied) (emphasis added).

As such, section 791.026 of the Interlocal Cooperation Act does not provide the

Appellant's Brief                                                              Page 63
District with any greater authority than it has under the Water Code. The Water

Code does not provide retail public water utilities with the authority to sell their

entire water systems. As the Appellant has alleged, such a transaction does not

enable CTSUD to carry out its rights or obligations and does not fairly compensate

it for any function or services performed. Further, it affects an illegal dissolution

of the District. Therefore, section 791.026 of the Interlocal Cooperation Act does

not authorize the District's asset transfer, and Appellant is entitled to a hearing on

the merits to establish these facts.

       6.41 The asset transfer also violates the Interlocal Cooperation Act because

it fails to provide adequate compensation. Section 791.011 expressly requires that

"[a]n interlocal contractual payment must be in an amount that fairly compensates

the performing party for the services or functions performed under the contract."

Tex. Gov't Code § 791.01l(e).          However, as discussed above, under the

Agreement, Georgetown acquired the District's water system, which the City

indicates had assets valued at more than $70 million, as well as the District's water

reserves and the revenues from its profitable retail water utility.      Further, the

Operations Agreement provided Georgetown with all revenues from the District's

water utility service, less a portion of a supplemental surcharge the District

imposed specifically to cover its own costs while Georgetown sought PUC


Appellant's Brief                                                             Page 64
approval for the transfer. CTSUD received no clear public benefit in return for this

transaction, and thus the Agreement failed to provide the District with anything

that could be considered fair compensation. As such, section 791.026 does not

authorize the asset transfer. Therefore, to the extent that trial court concluded that

the general contracting authority set out in Interlocal Cooperation Act and/or

Chapter 49 of the Water Code authorized the Agreement, this was error. For

jurisdictional purposes, these allegations of lack of fair consideration are

considered true.    Appellants are entitled to a hearing on the merits on these

allegations.

               2.   Agreement Illegally Dissolved CTSUD.

       6.42 In arguing that Appellant did not allege any facts affirmatively

demonstrating the court's jurisdiction over its ultra vires claims, the Chisholm

Defendants also argue that Directors actions have not affected the dissolution of

the District. See CR 53-54. This argument is erroneous.

       6.43 CTSUD was created in 1990 by order of the Texas Natural Resources

Conservation Commission (now, TCEQ), pursuant to Chapter 65 of the Texas

Water Code. CR 481. A principal purpose for its creation is to provide water

utility service. See Tex. Water Code §§ 65.012, 65.201.        Accordingly, CTSUD

served as the exclusive retail water utility provider within the District's territory


Appellant's Brief                                                             Page 65
for more than 20 years.

       6.44 The Agreement provides for the transfer of CTSUD's entire retail

water utility system and CCN to the City.            Accordingly, as explained in

Appellant's First Amended Petition, the Agreement provided that the District

would be physically, financially, and legally incapable of providing retail water

utility service to the very constituents it was created to serve. See e.g., CR 496-

499.   The Chisholm Defendants generally do not dispute this.

       6.45 In sections 65.727 through 65.731 of the Water Code, the Texas

Legislature provided the sole method by which the directors of such a district are

authorized to dissolve it. Appellant alleges and requests judicial declarations that

CTSUD lacks authority to dissolve under these or any other authority. Again, the

Chisholm Defendants generally do not dispute that the Directors lack authority to

legally dissolve CTSUD.      Accordingly, the Agreement expressly provided that

CTSUD and the City would seek passage of legislature authorizing the Directors to

dissolve the District. The Chisholm Defendants acknowledge that their efforts to

obtain such legislative authority were unsuccessful. See CR 54.

       6.46 CTSUD illegally consummated the transfer provided for in the

Agreement, nonetheless. Hence, Appellant alleges that the District Directors acted

without legal authority while taking action that effectively, and illegally, dissolved


Appellant's Brief                                                             Page 66
CTSUD.       Accordingly, Appellant's lawsuit clearly alleges that the District

Directors acted ultra vires and thereby invoked the trial court's jurisdiction.

Consequently, it was error for the trial court to enter the Order dismissing

Appellant's ultra vires claims for declaratory and injunctive relief.

       6.47 The Chisholm Defendants, nevertheless, dispute Appellant's ultra

vires claim by arguing that Agreement did not dissolve CTSUD. CR 54. In other

words, the Chisholm Defendants cite their own failure to obtain authority from the

Legislature to dissolve CTSUD in efforts to claim Appellant failed to allege any

facts affirmatively demonstrating the court's jurisdiction over its ultra vires claims.

This circular argument does not defeat Appellant's ultra vires claim because the

Agreement, on its face, evidences a dissolution and calls for the parties to obtain

the requisite legal authorization, and Appellant has further alleged facts showing

an illegal dissolution. See e.g., Lewis v. Davis, 472, 199 S.W.2d at 149 (holding

contract may be held void where illegality appears on the face of the contract or

where facts show its illegality).      Accordingly, to the extent that trial court

concluded that Appellant's allegations that the Directors acted without authority to

dissolve CTSUD failed to invoke the jurisdiction of the court, this was error.

Therefore, the trial court's order dismissing Appellant's ultra vires claims should

be reversed, and Appellant should be granted a hearing on the merits of its claims.


Appellant's Brief                                                              Page 67
              3.     Asset Transfer provided for an illegal grant of public funds.

       6.48 In arguing that Appellant did not allege any facts affirmatively

demonstrating the court's jurisdiction over its ultra vires claims, the Chisholm

Defendants finally argue that the Agreement did not provide for an illegal grant of

public funds.       CR 54-58.   Principally, the Chisholm Defendants argue that

Appellant's cannot claim that CTSUD transferred its assets to the City without

adequate consideration. /d. This argument is erroneous.

       6.49 Generally speaking, Section 52(a) of the Texas Constitution is

intended to prevent the gratuitous grant of public funds to any individual,

corporation, or purpose whatsoever. Edgewood Indep. Sch. Dist. v. Meno, 917

S.W.2d 717, 740 (Tex.1995). Accordingly, when a political subdivision transfers

funds, it must be for a public purpose with a clear public benefit received in return.

Texas Mun. League Intergovernmental Risk Pool, 74 S.W.3d at 383. The Supreme

Court has announced a three-part test to determine if a transaction accomplishes a

public purpose consistent with Section 52(a). Specifically, the test prescribes that

a   political subdivision must: (1) ensure that the predominant purpose is to

accomplish a public purpose, not to benefit private parties; (2) retain public control

over the funds to ensure that the public purpose is accomplished and to protect the

public's investment; and (3) ensure that the political subdivision receives a return


Appellant's Brief                                                              Page 68
benefit. Id.

       6.50 Appellant assert that the Agreement violates Section 52(a) because it

was not for a public purpose and did not provide a clear benefit to the District, the

District's customers, or landowners within the District. CR 494-498. For instance,

Appellant claims the Agreement rendered the District legally incapable of

providing water utility service to its constituents; (ii) illegally nullified the District

landowners' and consumers' statutory right to vote on water utility issues, and

affected an illegal dissolution of the District. See CR 509-510. Appellant's claim

is not limited to an allegation of inadequate consideration on the face of the

Agreement. Cf City of Lubbock v. Phillips Petroleum Co., 41 S.W.3d 149, 161

(Tex. App.-Amarillo 2000, no pet.) (city claiming Section 52(a) violation solely on

basis that consideration under agreement was inadequate). Hence, that issue could

not be dispositive of Appellant's claims of an illegal public grant of funds or its

ultra vires claims.

       6.51 Nevertheless, assuming arguendo that common law rules developed

in actions on written contracts to assess the adequacy of consideration may be

applicable to Appellant's claims, they do not support the trial court's Order of

dismissal.     The Chisholm Defendant's claim consideration is to be deemed

inadequate if there is such a gross disparity in the relative values exchanged that it


Appellant's Brief                                                                 Page 69
shocks the conscience and is tantamount to fraud. See CR 55 (citing Hindman v.

Harding, No. 03-04-00479-CV, 2005 WL 1038828, at *4 (Tex. App.-Austin May

5, 2005, no pet.)). This is a factual issue to be resolved by the trial court on a

hearing on the merits. For example, in Hindman, the Third Court of Appeals

reversed a trial court's partial summary judgment on consideration adequacy and

remanded the matter for trial. Hindman, 2005 WL 1038828, at *4-5; see also

Martin v. Martin, Martin & Richards, Inc., 12 S.W.3d 120, 125 (Tex. App.-Fort

Worth 1999, no pet.) (reversing summary judgment because evidence raised

genuine issue of material fact as to consideration).         Appellant alleges that

Agreement provided the City with a net acquisition of the District's water system,

which the City has valued at more than $70 million, as well as the District's water

reserves and the revenues from its profitable retail water utility, notwithstanding

CTSUD's claim that the City contributed a total of $5,285,070.45 toward the

defeasance of the District's debt. See CR 489-490, 495-496. Further, Appellant

alleges that the City greatly undervalued the assets it acquired. CR 490 n. 2.

These claims more than adequately allege facts of grossly inadequate

consideration. See e.g., City of Ingleside v. City of Corpus Christi, 469 S.W.3d at

590 (courts liberally construe the pleadings, taking all factual assertions as true);

cf. Miranda, 133 S.W.3d at 227 (trial court cannot grant the plea to the jurisdiction


Appellant's Brief                                                             Page 70
on a fact question regarding the jurisdictional issue; issue will be resolved by the

fact finder). Accordingly, to the extent that trial court concluded that Appellant

failed to allege that Agreement lacked adequate consideration or violated Section

52(a), or that the Directors acted without authority, this was error. Therefore, the

trial court's order dismissing Appellant's ultra vires claims should be reversed and

the matter remanded for a hearing on the merits.

              4.    Summary- Appellant invoked the trial court's jurisdiction
                    over its ultra vires claims.

       6.52 As explained above, a lawsuit alleging that a government official

acted without legal authority falls within the "ultra vires exception" to sovereign

and governmental immunity. Otherwise, citizens would be left without recourse or

remedy for such improper, unauthorized acts. Appellant's pleadings clearly allege

facts affirmatively asserting that the District Directors and Commissioners acted

ultra vires in excess of their constitutional and statutory authority. Consequently,

it was error for the trial court to enter the Order dismissing Appellant's ultra vires

claims for declaratory and injunctive relief.

G.     PUC's alleged primary or exclusive jurisdiction does not affect the trial
       court's jurisdiction over Appellant's claims.

       6.53 Appellees sought dismissal of Appellant's lawsuit by arguing that the

PUC has either exclusive or primary jurisdiction over Appellant's claims which


Appellant's Brief                                                             Page 71
should subject this lawsuit to dismissal or abatement. See CR 34-35, 59-60. These

arguments are also incorrect and inapposite.

       6.54 The concepts of exclusive and pnmary jurisdiction anse under

distinctly different doctrines. The primary jurisdiction doctrine operates to allocate

power between courts and agencies when both have authority to make initial

determinations in a dispute. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84

S.W.3d 212, 221 (Tex. 2002). Trial courts should allow an administrative agency

to initially decide an issue when: ( 1) an agency is typically staffed with experts

trained in handling the complex problems in the agency's purview; and (2) great

benefit is derived from an agency uniformly interpreting its laws, rules, and

regulations, whereas courts and juries may reach different results under similar fact

situations. Id. If the primary jurisdiction doctrine requires a trial court to defer to

an agency to make an initial determination, the court should abate the lawsuit and

suspend finally adjudicating the claim until the agency has an opportunity to act on

the matter. Id. (citing Central Power & Light Co. v. Public Util. Comm'n, 17

S.W.3d 780, 787 (Tex. App.-Austin 2000, pet. denied); Roberts Express, Inc. v.

Expert Transp., Inc., 842 S.W.2d 766, 771 (Tex. App.-Dallas 1992, no writ)).

       6.55 Under the exclusive jurisdiction doctrine, "the Legislature grants an

administrative agency the sole authority to make an initial determination in a


Appellant's Brief                                                              Page 72
dispute." !d. (citing Cash Am. Int'l Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex.2000)).

An agency has exclusive jurisdiction "when a pervasive regulatory scheme

indicates that Congress intended for the regulatory process to be the exclusive

means of remedying the problem to which the regulation is addressed."            !d.

(quoting Humphrey, Comment, Antitrust Jurisdiction and Remedies in an Electric

Utility Price Squeeze, 52 U. Chi. L.Rev. 1090, 1107 n. 73 (1985)). Whether an

agency has exclusive jurisdiction depends on statutory interpretation. !d. (citing

Cash Am., 35 S.W.3d at 16; Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d

444, 447 (Tex.1996)). Typically, if an agency has exclusive jurisdiction, a party

must exhaust all administrative remedies before seeking judicial review of the

agency's action. !d. (citing Cash Am., 35 S.W.3d at 15). Until then, the trial court

lacks subject matter jurisdiction and must dismiss the claims within the agency's

exclusive jurisdiction. !d. (citing Texas Educ. Agency v. Cypress-Fairbanks Indep.

Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Texas State Bd. of Examiners in

Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 246 (1961)). Because such

dismissal does not implicate the claims' merits, the trial court must dismiss the

claims without prejudice. !d. (citing Ritchey v. Vasquez, 986 S.W.2d 611, 612

(Tex.1999); Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1962)).

       6.56 An aggrieved party is excused from exhausting its administrative


Appellant's Brief                                                            Page 73
remedies if certain exceptions apply, including when: (i) an administrative agency

purports to act outside its statutory powers; (ii) where the administrative agency

cannot grant the requested relief; (iii) the issue presented is purely a question of

law; (iv) certain constitutional issues are involved; and (v) the administrative

remedies are inadequate and the exhaustion of administrative remedies would

cause irreparable injury. MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d

617, 625 (Tex. App.-Austin 2005, pet. denied); Strayhorn v. Lexington Ins. Co.,

128 S.W.3d 772, 780 (Tex. App.-Austin 2004), aff'd, 209 S.W.3d 83 (Tex. 2006).

       6.57 Although, the PUC's Plea to the Jurisdiction generally claimed that it

has primary or exclusive jurisdiction, the arguments raised therein only address

exclusive jurisdiction.    See CR 34-35; cf. id. at n. 10 ("Alternatively, the

Commission has primary jurisdiction over the issues raised by Plaintiff, and the

Court should abate the case pending the finality of the Commission's order.").

Particularly, the PUC claims it has exclusive jurisdiction over CCN applications

and suggests that this Court must await the filing of a suit for judicial review of the

PUC's decision regarding such an application before it may exercise jurisdiction

over this lawsuit. See id. The Chisholm Defendants make a similar argument.

CR 22-23.

       6.58 As explained above, Appellant asserts that the PUC lacks authority


Appellant's Brief                                                              Page 74
and jurisdiction to exercise its economic regulatory authority regarding CCNs to:

(a) take action that would render a special utility district ("SUD") created under

legislative authority to provide water utility service within its own boundaries

legally incapable of carrying out its statutory purpose; (b) take action that would

nullify a SUD's landowners' and consumers' statutory right to vote for a Board of

Directors with the authority to manage the district and govern its provision of

water utility service; (c) take action that would affect the dissolution of an SUD; or

(d) process or approve an CCN application that would effectively perform the three

aforementioned actions.      See e.g., CR 511-512.        Accordingly, Appellant's

pleadings challenge the PUC's interpretation, construction and application of the

statutes that regulate CCNs and includes claims that the Commissioners acted ultra

vires in processing a CCN application and adopting a final order to revoke the

CCN of an SUD (i.e., CTSUD) and amend the CCN of a municipal utility (i.e.,

Georgetown) to include all of the SUD's territory.           Moreover, Appellant's

pleadings seek injunctive relief as to the PUC because it cannot statutorily grant

the relief requested by the Chisholm Defendants. CR 513-515. Appellant's lawsuit

does not simply question the propriety of the PUC's decision to grant an otherwise

valid CCN application pursuant. Further, the Legislature did not grant the PUC

exclusive authority to resolve disputes concerning the construction of laws


Appellant's Brief                                                             Page 75
governmg CCNs or SUDs.          Consequently, the PUC does not have exclusive

jurisdiction over Appellant's claims concerning the interpretation and construction

of the applicable statutes. Alternatively, assuming arguendo that the PUC has

exclusive jurisdiction, Appellant is excused from exhausting its administrative

remedies because the PUC is acting outside its statutory powers, the PUC cannot

grant the requested relief, and this lawsuit presents issues that are pure questions of

law. Appellants are entitled to a judicial construction of the statutes. Therefore,

the PUC's Plea to the Jurisdiction should be denied.

       6.59 Regardless of whether the exclusive or primary jurisdiction doctrines

might apply, neither would support the dismissal or abatement of Appellant's

claims. The administrative proceeding to which the PUC's plea to the Jurisdiction

refers is now completed. As the PUC's plea to the jurisdiction noted, a final order

was issued on January 13, 2016. CR 33. Protestants to the Application filed a

timely motion for rehearing on February 5, 2016. CR 525, 545. On February 10,

2016, the PUC notified the parties that none of the Commissioners voted to add the

motion for rehearing to an open meeting agenda, which would be required for the

Commissioners to issue an order granting or denying said motion. See 16 Tex.

Admin. Code § 22.264(c). Accordingly, Protestants exhausted all administrative

remedies that may be applicable or available. CR 525. On March 8, 2016, the


Appellant's Brief                                                              Page 76
Protestants' aforementioned motion for rehearing was overruled by operation of

law, and thus became final and appealable. See Tex. Gov't Code §§ 2001.045,

2001.146(c), 2001.171; see also CR525.     That same day, Protestants petitioned a

Travis County District Court for judicial review of the PUC's final order. See

CR522. Protestants, who include members of the Appellant herein, petitioned in

intervention of this lawsuit. CR 523-525. Accordingly, Appellees' arguments in

favor of dismissal or abatement (under either the exclusive or primary jurisdiction

doctrines) are incorrect and inapposite. Consequently, the Appellee's Plea to the

Jurisdiction should be denied.     Therefore, the trial court's Order dismissing

Appellant's claims should be reversed and these claims should be remanded for a

hearing on the merits.

H.     Appellant has Standing.

       6.60   The Chisholm Defendants also incorrectly claim that Appellant lacks

standing to assert claims against them.      Appellant's First Amended Petition

establishes that the Chisholm Trail SUD Stakeholders Group is a domestic

nonprofit corporation, organized to advocate for and protect the interests of

residents and landowners in the rural areas of Bell, Burnet and Williamson

Counties in receiving adequate water utility service.     See CR 477.      Further,

Appellant's Petition provides that the Appellant and its members, including


Appellant's Brief                                                           Page 77
District customers and property owners, oppose and have protested CTSUD and

the City's efforts to: (i) enter into the illegal Asset Transfer Agreement; (ii)

illegally transfer CTSUD's CCN, assets, and water system to the City; and (iii)

illegally dissolve the District. See e.g., id. at 486-488.    As such, Appellant's

Petition demonstrates that a real controversy exists between the Appellant

(including its members) and the Appellees concerning the validity of the Asset

Transfer Agreement and the illegality of the Appellees' actions.

       6.61 When standing is not expressly conferred by statute, the general test

for standing in Texas requires that there (a) shall be a real controversy between the

parties, which (b) will be actually determined by the judicial declaration sought.

Sneed v. Webre, 465 S.W.3d 169, 180 (Tex. 2015); Austin Nursing Ctr., Inc. v.

Lovato, 171 S.W.3d 845, 848 (Tex.2005). When considering the standing of a

nonprofit corporation, the Texas Supreme Court has adopted the standard for

associational standing, which provides that an association has standing to sue on

behalf of its members when "(a) its members would otherwise have standing to sue

in their own right; (b) the interests it seeks to protect are germane to the

organization's purpose; and (c) neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit. Texas Ass'n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 447 (Tex. 1993). The first prong of


Appellant's Brief                                                             Page 78
associational standing may be satisfied if at least one of the organization's

members would have standing individually. See Save Our Springs Alliance, Inc. v.

City of Dripping Springs, 304 S.W.3d 871, 878 (Tex. App.-Austin 2010, pet.

denied); Hays County v. Hays County Water Planning P'ship, 106 S.W.3d 349,

357 (Tex.App.-Austin 2003, no pet.).

       6.62 As explained above, Appellant is a nonprofit corporation organized to

advocate for and protect the interests of residents and landowners in the rural areas

of Bell, Burnet and Williamson Counties in receiving adequate water utility

service. Appellant's members include District customers and property owners who

opposed the Agreement and have protested CTSUD and the City's efforts to enter

into the illegal Asset Transfer Agreement, illegally transfer CTSUD's CCN, assets,

and water system to the City, and illegally dissolve the District. Accordingly,

Appellant has standing because:      (a) at least one of its members would have

standing to sue the Defendants; (b) the interests Appellant seeks to protect in this

lawsuit are germane to the Chisholm Trail SUD Stakeholder Group's purpose; and

(c) neither the claims asserted nor the relief requested in this lawsuit requires the

participation of individual members in the lawsuit. Further, Appellant has standing

under TOMA because it qualifies as an interested person under that Act. See e.g.,

Thomas v. Beaumont Heritage Soc., 339 S.W.3d 893, 900 (Tex.- Beaumont 2011,


Appellant's Brief                                                             Page 79
pet. denied). Therefore, Appellant has standing to assert the claims raised in its

petition, and Appellees' Pleas to the Jurisdiction should have been denied.

         6.63 The Chisholm Defendants, nevertheless, assert that Appellant lacks

standing because it is not a party or third-party beneficiary to the Agreement. CR

62-63.     In making this argument, the Chisholm Defendants rely upon case

involving private litigants; not cases involving political subdivisions or public

officers bound by constitutional and statutory limitations on their contracting

authority and expenditure of public funds. See e.g., id (citing Niagara Fire Ins.

Co. v. Numismatic Co. of Fort Worth, 380 S.W.2d 830 (Tex. Civ. App.-Fort Worth

1964, writ ref' d n.r.e) (holding that property insurer of corporation lacked standing

to have sale of rare coins to the corporation by a corporate officer set aside on

ground of self-dealing for unfairness)). Such cases are inapplicable to the instant

lawsuit.    Appellant is not seeking a benefit or to enforce a right under the

Agreement. Cf. City of Austin v. McCall, 68 S.W. 791 (1902) (city taxpayer may

enjoin the city from entering into a wrongful contract for purchase of water and

electric light works). Accordingly, the trial court erred to the extent that it relied

upon the Chisholm Defendants' "stranger to the Agreement" argument to grant

Appellees' pleas to the jurisdiction. Therefore, the trial court's Order dismissing

Appellant's claims should be reversed.


Appellant's Brief                                                             Page 80
                                     VII.
                                  CONCLUSION

       7.1    The Texas Constitution and common law recogrnze that Texas

citizens have the standing and authority to obtain declaratory and injunctive relief

when elected officials, political subdivisions, state agencies act in violation of the

Texas Constitution and statutes.        Appellant's lawsuit seeks to remedy the

unconstitutional, unlawful and ultra vires acts of the Appellees. The doctrines of

sovereign immunity, governmental immunity, primary jurisdiction, and exclusive

jurisdiction do not shield the Appellees from Appellant's lawsuit for declaratory

and injunctive relief.   Judicial proceedings are the only potential remedy for

unconstitutional, unlawful acts; otherwise, citizens will have no protection from

abuses by government officials. Accordingly, Appellant affirmatively established

that the trial court has subject matter jurisdiction over this lawsuit. Therefore, the

trial court erroneously granted Appellees' pleas to the jurisdiction, and dismissed

Appellant's claims with prejudice.

                                        VIII.
                                      PRAYER

       8.1    For these reasons, Appellants request that this Court reverse the

decision of the trial court granting the Appellees' pleas to the jurisdiction and

remand this matter to the trial court for further proceedings.


Appellant's Brief                                                             Page 81
                    Respectfully submitted,



                    Is/ James P. Allison
                    James P. Allison
                    SBN: 01090000
                    j .allison@allison-bass.com

                    J. Eric Magee
                    SBN: 24007585
                    e.magee @allison-bass.com

                    Phillip Ledbetter
                    SBN: 24041316
                    p.ledbetter@allison-bass.com

                    ALLISON, BASS & MAGEE, L.L.P.
                    A.O. Watson House
                    402 W. 12th Street
                    Austin, Texas 78701
                    (512) 482-0701 telephone
                    (512) 480-0902facsimile




Appellant's Brief                                  Page 82
                        CERTIFICATION OF COMPLIANCE

        I certify that the Appellants' Brief in the Court of Appeals for the Third
District of Texas is a computer-generated document that contains 14,657 words,
which is less than 15,000 words, and complies with the word limit for such a brief
under Tex. R. App. P. 9.4.


                                              Is/ James P. Allison
                                              James P. Allison


                         CERTIFICATE OF SERVICE

      I certify that a copy of Appellants' Brief was served via certified mail, return
receipt requested, facsimile, e-mail and/or electronically on this 2nd day of June,
2016, to the following:

Jose E. De La Fuente                          Daniel C. Wiseman
SBN: 00793605                                 SBN: 2402178
jdelafuente@lglawfitm.com                     Daniel. wiseman @texasattomeygenera
Lambeth Townsend                              l.gov
SBN: 20167500                                 Office of the Texas Attorney General
1townsend@lglawfiim.com                       Environmental Protection Division
Ashley D. Thomas                              (MC-066)
SBN: 24090430                                 P.O. Box 12548
athomas @lglawfirm.com                        Austin, Texas 78711-2548
Lloyd     Gosselink, Rochelle      &          Telephone: (512) 463-2012
Townsend, P.C.                                Facsimile: (512) 320-0911
816 Congress Avenue, Suite 1900               Lead Attorney for Appellees the
Austin, Texas 78701                           Public Utility Commission of Texas,
Telephone: (512) 322-5800                     Commissioner Donna L. Nelson,
Facsimile: (512) 472-0532                     Commissioners Kenneth W Anderson,
Lead Attorneys for Appellees the City         Jr., and Commissioners Brandy Marty
of Georgetown, Chisholm Trail                 Marquez.
Special Utility District and the
District Directors.


Appellant's Brief                                                             Page 83
Breck Harrison                        (866) 929-1641 (Fax)
SBN: 24007325                         arodriguez @txadm.inlaw .com
bharrison @jw.com                     Attorney for Appellee the City of
Leonard Dougal                        Georgetown
SBN: 06031400
Idougal@ jw .com                      Kerry E. Russell
Jackson Walker, L.L.P.                Russell & Rodriguez, L.L.P.
100 Congress Avenue, Suite 1100       1633 Williams Drive, Building 2,
Austin,Texas78701                     Suite 200
Telephone: (512) 236-2000             Georgetown, Texas 78628
Facsimile: (512) 236-2002             (512) 930-1317
Attorneys for Appellees Chisholm      (866) 929-1641 (Fax)
Trail Special Utility District and    krussell @txadminlaw .com
District Directors Delton Robinson,
Ed Pastor, Mike Sweeney, James        Sam Chang
Pletcher, Robert Kostka, David        Staff Attorney
Maserang, Gary Goodman, and           Public Utility Commission of Texas
Robert Johnson, Jr.                   Legal Division
                                      1701 N. Congress Ave.
Art Rodriguez                         Austin, Texas 78711-3326
Russell & Rodriguez, L.L.P.           (512) 936-7261
1633 Williams Drive, Building 2,      (512) 936-7268 (fax)
Suite 200                             sam.chang @puc. texas. gov
Georgetown, Texas 78628-3659          Attorney for the Public Utility
(512) 930-1317                        Commission of Texas Staff



                                      Is/ James P. Allison
                                      James P. Allison




Appellant's Brief                                                Page 84
                              No. 03-16-00214-CV


                                  IN THE
                            COURT OF APPEALS
                                 FOR THE
                         THIRD DISTRICT OF TEXAS


               CHISHOLM TRAIL SUD STAKEHOLDERS GROUP,
                                                    Appellant,
                                        v.
CHISHOLM TRAIL SPECIAL UTILITY DISTRICT, AND DISTRICT
DIRECTORS DELTON ROBINSON, ED PASTOR, MIKE SWEENEY, JAMES
PLETCHER, ROBERT KOSTKA, DAVID MASERANG, GARY GOODMAN,
AND ROBERT JOHNSON, JR.; THE PUBLIC UTILITY COMMISSION OF
TEXAS; ET AL.,
                                               Appellees.


                     From the 419th Judicial District Court of
                              Travis County, Texas


                    APPENDIX TO APPELLANT'S BRIEF


    Appellant submits the following documents in support of its Brief.

                            TABLE OF CONTENTS

Order On Defendants' Pleas to the Jurisdiction and Special               Tab A
Exceptions
Plaintiff's First Amended Petition                                       TabB




Appellant's Brief                                                            Page 85
TABA
                                 CAUSE NO. D-1-GN-15-003337

CHISHOLM TRAIL STAKEHOLDERS                       §         IN THE DISTRICT COURT
GROUP,                                            §
     Plaintiff,                                   §
                                                  §                           ~~~~d in Tha District Court
v.                                                §                            of Travis County, Texas
                                                  §
THE CHISHOLM TRAIL SPECIAL                        §                                MAR f 1 2016~
UTILITY DISTRICT, DELTON                          §
ROBINSON, C.E. ("ED")                             §
PASTOR, MIKE SWEENEY,                             §
JAMES PLETCHER, PAT GOWER,                        §
ROBERT KOSTKA,                                    §
DAVID MASERANG,                                   §
GARY GOODMAN, AND ROBERT                          §         419TH JUDICIAL DISTRICT
JOHNSON, JR., IN THEIR OFFICIAL                   §
CAPACITIES AS DIRECTORS OF THE                    §
CHISHOLM TRAIL SPECIAL                            §
UTILITY DISTRICT,                                 §
                                                  §
and                                               §
                                                  §
THE CITY OF GEORGETOWN, TEXAS                     §
                                                  §
and                                               §
                                                   §
THE PUBLIC UTILITY COMMISSION                      §
OF TEXAS,                                          §
     Defendants.                                   §        TRAVIS COUNTY, TEXAS


              ORDER ON DEFENDANTS' PLEAS TO THE JURISDICTION
                         AND SPECIAL EXCEPTIONS

       On March 8, 2016, the Court considered the following: (1) Pleas to the Jurisdiction and

Special Exceptions of Defendants Delton Robinson, C.E. "Ed" Pastor, Mike Sweeney, James

Pletcher, Pat Gower, Robert Kostka, David Maserang, Gary Goodman, Robert Jolmson, Jr.

(together, all of the board members are the "Directors" and individually, a "Director"), the

Chisholm Trail Special Utility District (the "District"), and the City of Georgetown (the "City")

(collectively herein "Chisolm Defendants") against Plaintiff Chisolm Trail Stakeholders Group

                                                                                         Pag~   ltJ f 5
ORDER ON PLEAS TO THE JURISDICTION AND SPECIAL EXCEPTIONS
as to the claims for relief asserted in its First Amended Petition; (2) Pleas to the Jurisdiction of

Defendants Public Utility Commission of Texas, Donna A. Nelson, Kenneth W. Anderson, Jr.,

and Brandy Marty Marquez, in their Official Capacities as Public Utility Commissioners of

Texas (collectively herein "PUC Defendants"); and (3) Defendant City of Georgetown's Special

Exceptions to Plaintiffs Original Petition.

        Plaintiff appeared through its attorney of record, James P. Allison, and announced ready.

Chisolm Defendants appeared through their attorney of record, Jose E. De La Fuente, and

announced ready.     PUC Defendants appeared their attorney of record, Daniel Wiseman, and

announced ready. The record of testimony was duly reported by Della Rothermel, the court reporter

for the 250th Judicial District Court.

        After considering Defendants' Pleas to the Jurisdiction, the Special Exceptions, Plaintiffs'

Response, the parties' supplemental briefing, the pleadings on file, the arguments of counsel, and

the applicable law, the Court mles as follows:

        (1)     IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (A) in Plaintiffs First Amended Petition.              Accordingly,

Plaintiffs request for a declaratory judgment that the Chisolm Defendants have acted illegally

and ultra vires by acting to illegally dissolve CTSUD is hereby DISMISSED with prejudice to

refiling.

        (2)     IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (B) in Plaintiffs First Amended Petition.              Accordingly,

Plaintiffs request for a declaratory judgment that Defendants have acted illegally and ultra vires

by acting to illegally transfer CTSUD's assets to the City is hereby DISMISSED with prejudice

to refiling.


                                                                                            Page 2 ofS
ORDER ON PLEAS TO THE JURISDICTION AND SPECIAL EXCEPTIONS
        (3)     IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (C) in Plaintiffs First Amended Petition. Accordingly,

Plaintiffs request for a declaratory judgment that the Asset Transfer Agreement, including any

amendments, between CTSUD and the City is illegal and void hereby is hereby DISMISSED

with prejudice to refiling.

        (4)     IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (D) in Plaintiffs First Amended Petition.               Accordingly,

Plaintiffs request for a declaratory judgment that Georgetown's Application seeks PUC

approval to affect an illegal dissolution of the District and transfer of the District CCN and assets

is hereby DISMISSED with prejudice to refiling.

        (5)     IT IS ORDERED that PUC Defendants' Pleas to the Jurisdiction are GRANTED

as to Claim for Relief (E) in Plaintiffs First Amended Petition. Accordingly, Plaintiffs request

for a declaratory judgment that the PUC lacks jurisdiction over Georgetown's Application is

hereby DISMISSED with prejudice to refiling.

        (6)      IT IS ORDERED that PUC Defendants' Pleas to the Jurisdiction are GRANTED

as to Claim for Relief (F) in Plaintiffs First Amended Petition. Accordingly, Plaintiffs request

for a declaratory judgment that the Commissioners have acted illegally and ultra vires by

processing and approving Georgetown's Application is hereby DISMISSED with prejudice to

refiling.

        (7)      IT IS ORDERED that the Pleas to the Jurisdiction of Chisolm Defendants and

PUC Defendants are GRANTED as to Claim for Relief(G) in Plaintiffs First Amended Petition.

Accordingly, Plaintiffs request for injunctive relief enjoining, staying, voiding, and reversing

Defendants' illegal and ultra vires acts is hereby DISMISSED with prejudice to refiling.


                                                                                             Page J ofS
ORDER ON PLEAS TO TilE JURISDICTION AND SPECIAL EXCEP r!ON!:>
       (8)     IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (H) in Plaintiffs First Amended Petition. Accordingly,

Plaintiff's request for injunctive relief enjoining, staying, voiding, reversing, and preventing any

acts to implement the Asset Transfer Agreement, including any amendments is hereby

DISMISSED with prejudice to refiling.

       (9)     IT IS ORDERED that PUC Defendants' Pleas to the Jurisdiction are GRANTED

as to Claim for Relief (I) in Plaintiff's First Amended Petition. Accordingly, Plaintiff's request

for injunctive relief staying and enjoining all proceedings before the PUC and State Office of

Administrative Hearings related to Georgetown's Application, including any amendments,

pending further order of the Court is hereby DISMISSED with prejudice to refiling.

       (10)    IT IS ORDERED that PUC Defendants' Pleas to the Jurisdiction are GRANTED

as to Claim for Relief (J) in Plaintiff's First Amended Petition. Accordingly, Plaintiff's request

for injunctive relief enjoining, staying, voiding, and reversing any proposal for decision or final

order by the PUC and/or any presiding officer who has or will conduct any hearing (including

any Administrative Law Judge with SOAH) related to Georgetown's Application, including any

amendments is hereby DISMISSED with prejudice to refiling.

       (11)    IT IS ORDERED that the Pleas to the Jurisdiction of Chisolm Defendants and

PUC Defendants are GRANTED as to Claim for Relief (K) in Plaintiff's First Amended Petition.

Accordingly, Plaintiff's request for injunctive relief enjoining the transfer of the District' s CCN

to Georgetown is hereby DISMISSED with prejudice to refiling.

       (12)    IT IS ORDERED that Defendant City of Georgetown's Special Exceptions to

Claims for Relief (L), (M), and (P) in Plaintiff's First Amended Petition is SUSTAINED. By no

later than April 11, 2016, Plaintiff shall replead with sufficient factual allegations to support a


                                                                                            Page -' uf 5
ORDER ON PLEAS TO THE JURISDICTION AND SPECIAL EXCEPTIONS
claim that Chisolm Defendants violated the Texas Open Meetings Act.         If Plaintiff fails to

replead appropriately, Claims for Relief (L), (M), and (P) in Plaintiff's First Amended Petition

shall be dismissed.

       (13)    IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (N) in Plaintiff's First Amended Petition.          Accordingly,

Plaintiffs request for a permanent injunction enjoining, staying, voiding, and reversing

CTSUD' s actions related to the transfer of CTSUD's CCN to the City of Georgetown and the

transfer of CTSUD's assets pursuant to the Asset Transfer Agreement and amendments is hereby

DISMISSED with prejudice to refiling.

        (14)   IT IS ORDERED that Chisolm Defendants' Pleas to the Jurisdiction are

GRANTED as to Claim for Relief (0) in Plaintiffs First Amended Petition.           Accordingly,

Plaintiff's request for a permanent injunction enjoining, staying, reversing, voiding, and

preventing the effectiveness ofthe transfer ofCTSUD's CCN to the City of Georgetown and the

transfer of CTSUD's assets pursuant to the Asset Transfer Agreement and amendments is

DISMISSED with prejudice to refiling.


                             ' --(t
        SIGNED on the    JL     :a;ofMarch, 2016.



                                                             L/1//-- ; ·i
                                                       JUDGE
                                                          .•'
                                                              .P RESIDING
                                                                 I
                                                       KARIN CRUMP
                                                            ,/   I
                                                       ( /
                                                        -
                                                                                        Pngc 5of5
ORDER ON PLEAS fO THE JURISDICTION AND SPECIAL EXCEPTIONS
TABB
                                                                 3/8/2016 10:59:14 AM
                                                                                     Velva L. Price
                                                                                    District Clerk
                                                                                    Travis County
                                                                                 D-1-GN-15-003337
                                     No. D-1-GN-15-003337                             Patsy Ybarra

CHISHOLM TRAIL SUD                            §             IN THE DISTRICT COURT
STAKEHOLDERS GROUP,                           §
          Plaintiff,                          §
                                              §
V.                                            §
                                              §
THE CHISHOLM TRAIL SPECIAL                    §
UTILITY DISTRICT, DELTON                      §
ROBINSON, C.E. ("ED')                         §
PASTOR, MIKE SWEENEY,                         §
JAMES PLETCHER, PAT GOWER,                    §
ROBERT KOSTKA, DAVID MASERANG,                §
GARY GOODMAN, AND ROBERT                      §
JOHNSON, JR., IN THEIR OFFICIAL               §
CAPACITIES AS DIRECTORS OF THE                §
CHISHOLM TRAIL SPECIAL UTILITY                §
DISTRICT,                                     §
                                              §
and                                           §
                                              §
THE CITY OF GEORGETOWN, TEXAS,                §                 419TH DISTRICT OF
                                              §
and                                           §
                                              §
THE PUBLIC UTILITY COMMISSION OF              §
TEXAS,                                        §
                                              §
and                                           §
                                              §
DONNA L. NELSON, KENNETH W.                   §
ANDERSON, JR., AND BRANDY MARTY               §
MARQUEZ, IN THEIR OFFICIAL                    §
CAPACITIES AS PUBLIC UTILITY                  §
COMMISSIONERS OF TEXAS,                       §
                                              §             TRAVIS COUNTY, TEXAS
              Defendants.


                      PLAINTIFF'S FIRST AMENDED PETITION

TO THE HONORABLE JUDGE OF SAID COURT:




Plaintiff's First Amended Petition                                            Page 1
       NOW COMES Chisholm Trail SUD Stakeholders Group, Plaintiff herein, and would

show unto the Court as follows:

                                                 I.
                                  DISCOVERY CONTROL PLAN

       1.      Discovery is intended to be conducted under a Level 2 a Discovery Control Plan,

pursuant to Texas Rules of Civil Procedure 190.3.

                                                II.
                                       CLAIMS FOR RELIEF

       2.1     Plaintiff seeks nonmonetary and monetary relief of $100,000 or less, including

damages of any kind, penalties, court costs, expenses, prejudgment interest, and attorney fees.

See TEX. R. CN. P. 47.

                                                III.
                                             PARTIES

       3.1     Plaintiff Chisholm Trail SUD Stakeholders Group ("Plaintiff') is a domestic

nonprofit corporation. Plaintiff is organized to advocate for and protect the interests of residents

and landowners in the rural areas of Bell, Burnet and Williamson Counties in receiving adequate

water utility service. Its principal business address is 235 Sharp Cemetery Road, Killeen, Texas

76542-5146. Plaintiff has not been issued a driver's license number or a Social Security number.

See TEX. CN. PRAC. & REM. CODE ANN.§ 30.014(a).

       3.2     Defendant Chisholm Trail Special Utility District ("CTSUD" or "District") is a

special utility district created in 1990 by order of the Texas Natural Resources Conservation

Commission (now, the Texas Commission on Environmental Quality ("TCEQ")), pursuant to

Chapter 65 of the Texas Water Code. The District's geographic area covers approximately

257, 116 acres and encompasses portions of Bell, Burnet, and Williamson Counties. The District

does not include the City of Georgetown and vice versa. The District provides retail water utility


Plaintiffs First Amended Petition                                                            Page 2
service to this area pursuant to a Certificate of Convenience & Necessity ("CCN") No. 11590

issued by the TCEQ, jurisdiction over this certificate has now been statutorily transferred to the

Public Utility Commission ("PUC"). Citation has been issued and served upon Defendant

Chisholm Trail Special Utility District as provided by law.

       3.3     Defendants Delton Robinson, C.E. ("Ed") Pastor, Mike Sweeney, Robert Kotska,

James Pletcher, David Maserang, Pat Gower, Gary Goodman, and Robert Johnson, Jr., are the

individuals who are serving or have served as Directors of the Chisholm Trail Special Utility

District, a political subdivision of the State of Texas, duly formed and existing under the laws of

the State of Texas. These Defendants (collectively referred to as the District "Board Members"

or "Directors") are being sued in their official capacities as the current and former board

members for the Chisholm Trail Special Utility District. Citations have been issued and served

upon each Defendant Director as provided by law.

       3.4     Defendant, the City of Georgetown ("Georgetown") is a home rule, municipal

corporation located in Williamson County, Texas. Citation has been issued and served upon

Defendant Georgetown as provided by law.

        3.5    Defendant the Public Utility Commission of Texas ("PUC") is a political

subdivision of the State of Texas. The PUC's principal office is located in Austin, Texas. TEX.

UTIL. CODE§ 12.002. Citation has been issued and served upon the PUC as provided by law.

        3.6    Defendants Donna L. Nelson, Kenneth W. Anderson, Jr., and Bandy Marty

Marquez ("Commissioners") are the individuals appointed to serve as the three commissioners of

the PUC, as prescribed by Tex. Uti!. Code § 12.051, and are being sued in their official

capacities.

        A.     Citation may be served on Defendant Donna L. Nelson at her usual place
               of business, the PUC Office, which is physically located in the William B.


Plaintiffs First Amended Petition                                                           Page 3
               Travis Bldg., 1701 N. Congress Avenue, 7th Floor, Austin, TX 78701.
               The mailing address for Defendant Donna L. Nelson's usual place of
               business is 1701 N. Congress Avenue, P. 0. Box 13326, Austin, TX
               78711-3326. Alternatively, Defendant Nelson may be served with citation
               wherever she may be found.

       B.      Citation may be served on Defendant Kenneth W. Anderson, Jr., at his usual place
               of business, the PUC Office, which is physically located in the William B. Travis
               Bldg., 1701 N. Congress Avenue, 7th Floor, Austin, TX 78701. The mailing
               address for Defendant Kenneth W. Anderson, Jr.'s usual place of business is 170 l
               N. Congress Avenue, P. 0. Box 13326, Austin, TX 78711-3326. Alternatively,
               Defendant Kenneth W. Anderson, Jr., may be served with citation wherever she
               may be found.

       C.      Citation may be served on Defendant Bandy Marty Marquez at her usual place of
               business, the PUC Office, which is physically located in the William B. Travis
               Bldg., 1701 N. Congress Avenue, 7th Floor, Austin, TX 78701. The mailing
               address for Defendant Bandy Marty Marquez's usual place of business is 1701 N.
               Congress Avenue, P. 0. Box 13326, Austin, TX 78711-3326. Alternatively,
               Defendant Bandy Marty Marquez may be served with citation wherever she may
               be found.

       3.7     CTSUD, the District's Board Members, Georgetown, the PUC, and the

Commissioners are all necessary parties.      All persons who have any interest that would be

affected by the declaration must be made parties. TEX. CIV. PRAC. & REM. CODE § 37.006(a).

Further, all parties to an agreement are indispensable parties to any litigation that seeks to declare

the agreement void and/or seeks injunctive relief that effectively sets aside the agreement. Texas

Logos, L.P. v. Bri11/mzeyer, 254 S.W.3d 644, 658 (Tex. App.-Austin 2008, no pet.); Texas River

Barges v. City of San Antonio, 21 S.W.3d 347, 357 (Tex.App.--San Antonio 2000, pet. denied)

(party to a contract "is an indispensable party to any litigation that seeks to declare the contract

void ") (emphasis added); McC/zaren v. Bailey, 87 S.W.2d 284, 285 (Tex.Civ.App.--Eastland

1935, no writ) ("Where the injunction in effect sets aside a contract all parties to the contract are

necessary parties."). Further, under Texas law all parties against whom an injunction must run

should be named in a suit for injunctive relief. AVCO Corp. v. Interstate Sw., Ltd., 145 S.W.3d



Plaintiff's First Amended Petition                                                            Page 4
257, 266 (Tex. App.-Houston [l41h Dist.] 2004, no pet.); Lone Starr Multi Theatres, Inc. v.

State, 922 S.W.2d 295, 297-98 (Tex.App.-Austin 1996, no writ). Plaintiff seeks declaratory and

injunctive relief against all Defendants. Particularly, Plaintiff requests declaratory and injunctive

relief setting aside an Asset Transfer Agreement between CTSUD and Georgetown.

Additionally, Plaintiff requests declaratory and injunctive relief from CTSUD and its Board

Members' illegal and ultra vires acts. Further, Plaintiff request declaratory and injunctive relief

regarding CTSUD and Georgetown's efforts to affect an illegal dissolution and transfer of

CTSUD's assets and CCN.          Moreover, Plaintiffs request declaratory and injunctive relief

regarding the PUC's lack of jurisdiction to affect an illegal dissolution and transfer of CTSUD's

assets and CCN, as well as the Commissioners' related ultra vires acts.

                                                IV.
                                    JURISDICTION AND VENUE

       4.1     The Honorable Court has jurisdiction over the controversy and the parties

pursuant to Article III, § 52 and Article V, § 8, of the Texas Constitution; Texas Government

Code § 24.007, and the Uniform Declaratory Judgments Act, TEx. Crv. & REM CODE§ 37.004.

The Court has jurisdiction to compel compliance with statutory or constitutional provisions, and

to enjoin public officials from expending public funds under a contract that is void or illegal. See

Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 393 (Tex. 2011); Osborne v.

Keith, 177 S.W.2d 198, 200 (Tex. 1944). The amount in controversy exceeds this Court's

minimum jurisdictional requirements.

       4.2     Governmental immunity is not implicated, or, in the alternative, is waived.

       4.3     Venue is proper in Travis County, Texas pursuant to Sections 15.002, 15.012 and

15.005 of the Texas Civil Practice & Remedies Code. This lawsuit involves a written agreement

between CTSUD and Georgetown to perform various obligations, including efforts to obtain


Plaintiffs First Amended Petition                                                            Page 5
approval of the agreement from the TCEQ (now, PUC) and to prepare and seek the passage of

legislation authorizing CTSUD's dissolution. CTSUD, the Directors, and Georgetown have been

actively pursuing both efforts, all of which have been and are still occurring in Travis County.

The efforts of CTSUD, the Directors, and Georgetown have also resulted in the closure of

CTSUD's principal office in this state. Further, venue is proper in Travis County because the

Defendant Commissioners and the PUC's principal office are located in Austin, Texas.

Moreover, venue is mandatory in Travis County because this lawsuit seeks to stay proceedings

before the PUC and State Office of Administrative Hearings, which are pending in Austin,

Texas.    The PUC does not contest that Travis County, Texas is the proper venue. All of

Plaintiffs claims or actions arise out of the same transaction, occurrence, or series of

transactions or occurrences. Therefore, Travis County is the proper venue.

                                                v.
                                    CONDITIONS PRECEDENT

         5.1     All conditions precedent to Plaintiffs claims for relief have been performed or

have occurred.

                                             VI.
                                     FACTUAL BACKGROUND

         6.1     The Chisholm Trail Special Utility District was created in 1990 by order of the

Texas Natural Resources Conservation Commission (now, TCEQ), pursuant to Chapter 65 of the

Texas Water Code. The District's geographic area is generally bounded on the east by Interstate

Highway 35, to the south by the South San Gabriel River, to the west by the Burnet

County/Williamson County, and to the North by the Lampasas River. The area is approximately

340 square miles and encompasses portions of Bell, Burnet, and Williamson counties. The

District does not include the City of Georgetown and vice versa. The District provides retail



Plaintiffs First Amended Petition                                                        Page 6
water utility service to this area pursuant to a Certificate of Convenience & Necessity ("CCN")

No. 11590 issued by the TCEQ (now, statutorily transferred to the PUC). Currently, the District

serves more than 7,000 water utility customers. The District is governed by a seven-member

board of directors, elected at-large by the qualified voters in the District.

        6.2.    The City of Georgetown (the "City" or "Georgetown") is a home rule city located

in Williamson County. The City has a council-manager form of government. The City provides

retail water utility services pursuant to a CCN issued by the TCEQ (i.e., CCN No. 12369). The

Georgetown Utility System r'GUS") is a division of the City of Georgetown. GUS is responsible

for the management and operations of the City's electric, water and wastewater systems. GUS

has an advisory board that reviews policy, rates, and contracts and makes recommendations

related to these issues to the City Council. Recommendations by the GUS advisory board are

subject to ratification by the City Council. The GUS advisory board is selected by the City

Council.

        6.3     In 2007, the District entered into an agreement with the City of Georgetown to

increase the capacity of a surface water treatment plant that would serve both the District and the

City.      Under the Agreement, the District contributed several million dollars towards the

expansion of the North Lake Georgetown Water Treatment Plant and obtained the right to an

additional 5 million gallons per day of treated surface water. The expansion was due to be

completed no later than the spring of 2011, but the Georgetown City Council delayed its

completion. The additional treated water capacity the District had planned to get from the North

Lake Georgetown plant was not available as scheduled due to the impacts of the 2011 drought.

Thus, the District needed to rely upon its groundwater wells. One of those wells was found to

have an obstruction that prevented lowering the intake valve to the proper level, resulting in



Plaintiffs First Amended Petition                                                           Page 7
supply problems as the drought affected groundwater levels. All of this resulted in the District

implementing water stage 4 water use restrictions on its customers' water use. These were

primarily aimed at restricting landscape watering.

       6.4     During the stage 4 water restrictions, all of the District's groundwater wells were

brought back on line. The North Lake Georgetown Water Treatment Plant expansion project was

completed by the City of Georgetown in the fall of 2011. By that time, the District had more

treated water capacity than it had demand and was fully able to meet the needs of its customers.

       6.5     After the Stage 4 watering restrictions were implemented, the District received

complaints from customers in suburban areas near the City of Georgetown. This included

complaints by Defendants Mike Sweeney and Delton Robinson, as representatives of ad hoc

water committees for their respective neighborhoods. In 2012, those ad hoc water committees

begun actively advocating for the District to pursue a transaction wherein the District would be

dissolved and all of its water system and assets would be acquired by the City. Representatives

from these ad hoc water committees sought to elect Delton Robinson and Mike Sweeney to the

District's board in efforts to ensure that the District would be dissolved and acquired by the City.

Defendants Delton Robinson and Mike Sweeney were elected in November 2012.

       6.6     Under pressure from District customers who were unhappy with the District's

water restrictions, the District entered into discussions with the City about possible options to

regionalize water supply. The City, however, was interested only in acquiring all of the District's

water, water system, and CCN. In April 2013, the District's Board rejected the City's proposal

for an asset purchase agreement. The agreement would have provided the City with all the

benefits of acquiring a viable water system and provided little or no public benefit in return.

Notably, the agreement failed to increase regional water supply or capacity, failed to provide the



Plaintiffs First Amended Petition                                                           Page 8
District customers with any commitments to provide better rates of service, and failed to provide

customers or landowners with any effective electoral representation. It also included the City's

acquisition of the District's assets without paying adequate compensation.

       6.7     The District Board did not authorize any continued negotiations with the City

after the April 18, 2013 meeting. Nevertheless, representatives of the City continued efforts to

pursue the District's water and assets. The District directors most sympathetic to such a

transaction then formed an ad hoc negotiating committee which took it upon itself to reopen

negotiations with the City. During a meeting of the Board on July 18, 2013, Defendant Pat

Gower suggested that the District have legal counsel prepare a contract providing for the transfer

of all District assets and service territory to the City and for the District to be dissolved.

Defendant Gower further suggested the draft contract be put to a final vote by the Board. The

Board represented to the public that its legal counsel would be responsible for protecting the

interests of the District's customers in connection with the preparation of the agreement.

       6.8     During the next board meeting on August 1, 2013, the District's attorney, Mr.

Tony Corbett, resigned his position. Defendant Pat Gower explained that Mr. Corbett felt the

agreement he was instructed to prepare did not adequately protect the District's customers.

During the same board meeting, Defendant Ed Pastor announced that he was resigning his

position on the Board of Directors and that his resignation would be effective immediately. The

Board then took a vote regarding whether to approve the asset transfer agreement. The board did

not approve the agreement. At the end of the August 1 board meeting, Defendant Pat Gower

indicated that he would table the board's consideration of the asset transfer agreement and set the

matter for another vote on August 15, 2013. He also indicated that he would retain another




Plaintiff's First Amended Petition                                                           Page 9
attorney, Mr. Leonard Dougal, to review the asset transfer agreement prior to the August 15th

meeting.

       6.9     The District held another board meeting on August 14, 2013. During the meeting,

Mr. Dougal made a presentation to the board recommending that it amend the District's policies

regarding indemnity and legal costs. Such amendments were intended to protect board members

in the event they were sued related to their participation in the process of approving an asset

transfer agreement with the City. The board adopted the recommended amendments.

Additionally, Defendant Pat Gower made a motion to reseat Defendant Ed Pastor as a District

Board member. The Board then approved Defendant Pastor being reseated.

       6.10    The following day (August 15, 2013), the District held another board meeting,

and voted to adopt District Resolution No. 2013-0815-01 authorizing the execution of an

agreement transferring substantially all of the District's property and assets, including its water

system assets, to the City. Marcus Canipe was the only Director who voted against the

resolution. Resolution No. 2013-0815-0 1did not identify the particular terms of the asset transfer

agreement and did not attach a copy the asset transfer agreement it purported to authorize.

       6.11    In September 2013, the District and the City entered into a written Asset Transfer

and Utility System Consolidation Agreement ("Agreement" or "Asset Transfer Agreement").

The effective date of the Agreement was October 15, 2013. The Agreement provided for the

transfer of the District's entire water system to the City, including all of the District's facilities,

property, cash, contracts, obligations, and all of the District's certificated water service area.

        6.12   The Agreement placed a book value of $61,730,888.00 on the District's assets,

and indicated that the District had approximately $15,611,627.00 in outstanding long-term debt.

The Agreement did not place a value on the District's water rights, including the District's right



Plaintiffs First Amended Petition                                                             Page 10
to more than 11,000 acre feet of raw water per annum from the Brazos River Authority. As

such, the Agreement provides for the City's acquisition of well more than $46 million in value of

net assets, without regard to the value of the District's water rights. The Agreement further

provided that the parties agreed to use best efforts to seek passage of legislation that would

authorize the immediate dissolution of the District. Accordingly, the Agreement provided no

consideration to the District or public benefit. The District would simply transfer its assets and

stop operating. The District would effectively be abolished and would no longer exist for any

legal purpose.

       6.13.     The Agreement further provided that the closing of this transaction was

conditioned upon the parties obtaining consent from various parties, including the "[a]pproval by

the TCEQ for the transfer of the CTSUD CCN and the Assets." As such, in November 2013, the

City filed an Application for Sale, Transfer, or Merger of a Retail Public Utility" ("STM

Application" or "Application") with the TCEQ.      The STM Application sought approval of the

following proposed actions:     (1) the sale of and acquisition of the water system under the

District's CCN No. 11590; (2) transfer of the District's entire CCN to the City; (3) amendment

of the City's CCN No. 12369; and (4) cancellation of the District's CCN. The Application and

the accompanying notices that were delivered to District customers and other affected persons

declaring the District's "INTENT TO SELL FACll.JTIES AND TRANSFER CERTIFICATE

OF CONVENIENCE AND                NECESSITY (CCN)         NO.    11590 TO THE         CITY    OF

GEORGETOWN."

       6.14.     Numerous persons protested the proposed transaction and requested a contested

administrative hearing by the TCEQ, including the members of the Plaintiff nonprofit

corporation, the Bell County Commissioners Court, Texas Senator Troy Fraser, and Texas



Plaintiffs First Amended Petition                                                        Page 11
Representative Jimmie Don Aycock. These protestors explained that the interests of the water

utility customers, businesses, and landowners within the District are best served by its continued

operation as a freestanding district that is governed by a board of directors who are electorally

and politically accountable to the voters within the District's boundaries. The proposed transfer

of the CTSUD's assets and CCN to City of Georgetown would cede control of water utility

service decisions for areas well beyond the Georgetown city limits to the Georgetown City

Council. This would alienate and politically isolate the customers, businesses, and landowners in

the rural area of the District, leaving them with no representation in their water matters because

all customers in the unincorporated areas of Williamson County (outside the City of

Georgetown), and the customers in Bell and Burnet Counties cannot vote for the Georgetown

City Council. This action would be detrimental to the interests and property values of customers,

businesses, and property owners in the portions of Bell, Burnet, and Williamson counties located

outside Georgetown's city limits.

       6.15    In May 2014, the matter was referred to the State Office of Administrative

Hearings ("SOAH") for a contested case hearing.          Following a preliminary hearing, the

Administrative Law Judge determined that the TCEQ had jurisdiction over Georgetown's STM

Application and admitted parties, including five Protestants ("Protestants"), three of whom are

also Plaintiffs members.

       6.16    On August 21, 2014, the District's Board adopted a resolution that purports to:

( 1) authorize the District's president to execute an Amended Asset Transfer Agreement with

Georgetown; (2) authorize the District's president to execute an Operations Agreement between

the District and Georgetown; (3) authorize the District's president to consummate the

transactions contemplated by the Amended Asset Transfer Agreement and Operations



Plaintiffs First Amended Petition                                                        Page 12
Agreement; and (4) approve the adoption of a Transition Surcharge of $4.75 per meter per for

District customers "to fund CTSUD's operating costs and expenses associated with transitioning

service to the City of Georgetown and with maintaining CTSUD's CCN." The Amended Asset

Transfer Agreement and the Operations Agreements were not attached to or incorporated into the

resolution.

           6.17.    On September I, 2014, Georgetown's STM Application was statutorily

transferred from the subject matter jurisdiction of the TCEQ to the PUC. The filings in that

matter (SOAH DOCKET NO. XXX-XX-XXXX and PUC DOCKET NO. 42861) are publicly

available online. 1

           6.18.    On September 12, 2014, CTSUD and the City executed a First Amendment to

Asset Transfer and Utility System Consolidation Agreement ("First Amendment" or "First

Amended Agreement") which incorporated several documents related to the transaction,

including a Service Area Operations and Management Agreement ("Operations Agreement").

Also included was a Flow of Funds Memorandum, which outlines the flow of funds in

connection with First Amendment, including the efforts of the City to defease a portion of the

District's bonded indebtedness.

           The First Amendment contains several notable changes, including that:

           ( 1) the District will no longer be obligated to transfer its CCN to the City at the
           closing of their asset transfer; and

           (2) the parties agreed to waive the requirement that the TCEQ approve the asset
           transfer agreement as a condition of their closing.




1
    The filings in this docket may be accessed by visiting
llltp:/hntcrchangq1uc .lc\.1~ .!!ll\ / \\ chr\pp/lnrcrchJn!!d.lpplu.:.tl h lll/tlbapp'/f i!Jng.,/p!!l.,cw ch .J'-P and searching for
control number 42861 .

Plaintiffs First Amended Petition                                                                                            Page 13
       6.19    The aforementioned resolution provides that pursuant to the Operations

Agreement, "the City will provide water utility services within the CTSUD CCN." Accordingly,

the Operations Agreement generally provides that the City will be responsible for operating the

District's water system and have all powers of District Management and staff. Under the

Agreement, the parties claim that the District shall continue to exercise all of the powers and

duties of the CCN holder for water utility service within the District's CCN. Nevertheless, under

the First Amended Agreement, the District transferred all of its water system to the City and

adopted the City's policies and rate structure (not including the Transition Surcharge). Further,

the District agreed that the City will bill, collect, and retain water service revenues collected

within the District's CCN, less a portion of the aforementioned Transition Surcharge.

       6.20    Following the execution of the First Amendment, CTSUD illegally consummated

the transaction, transferring its waters system and nearly all of its assets to the City. Since the

closing of the asset transfer, the District effectively ceased to exist. The District no longer

operates an office. Calls to the District's telephone number (254-793-3103) were greeted with a

recording stating that caller had reached "Georgetown Utility Systems, formerly Chisholm Trial

Special Utility District." The recorded messages also indicate that the District's phone number

will be discontinued.    Further, District customers now receive water utility bills from the

"Georgetown Utility Systems Western District Office."      The First Amendment and Operations

Agreement also made the City responsible for seeking approval to transfer the District's CCN.

       6.21    The Flow of Funds Memorandum produced by the District regarding the payment

of its obligations pursuant to the Amended Asset Transfer Agreement indicates that the City

contributed a total of $5,285,070.45 toward the defeasance of the District's debt. Further, the

City has produced a Financial Report for fiscal year 2014, which provides that the City



Plaintiffs First Amended Petition                                                         Page 14
experienced a 91.8% increase in revenue over the prior year, including $71.5 million in capital

grants and contributions due primarily to the acquisition of CTSUD. Hence, under the First

Amendment to the Asset Transfer Agreement, the City acquired the District's water system,

which the City has valued at more than $70 rnillion 1, as well as the District's water reserves and

the revenues from its profitable retail water utility.

           6.22        In September 2014, the Protestants in the contested case hearing filed a motion

seeking the dismissal of Georgetown's STM Application. The Motion provided, inter alia, that

Georgetown's STM Application seeks to illegally revoke the District's CCN, dissolve the

District, and transfer the District's assets to Georgetown.                                 Further, the motion provided that the

PUC lacks jurisdiction to approve Georgetown's STM Application and affect an illegal

dissolution of the District, as well as an illegal acquisition of the District's water system and

CCN. The PUC Staff responded by asserting that the PUC does not have jurisdiction to evaluate

whether the STM Application or Asset Transfer Agreement violates the statutory requirements

related to dissolution of special utility districts. 3 The Administrative Law Judge agreed and

ordered that the proceeding continue solely regarding the issues regarding the proposed transfer

of the District's CCN to Georgetown. The Public Utility Commissioners refused to hear an

appeal of that decision, and later issued a Preliminary Order identifying the issues that must be

addressed by the AU. Notably, the Preliminary Order indicated that the proceeding would not

address the dissolution of the District or the approval of the Asset Transfer Agreement. 4


2
  Plaintiff maintains that this valuation fails to account for additional assets and receivables, including water rights,
and is considerably below market value.
3
  See Staffs Response to Protestants' Motion for Summary Disposition (Item No. 131) at pg. 3 (available online
here:
http://i mere h.tn !!e. pu.: .1.: \:ts.2u\/\V ch,Anp/1 n_Lc.r.: h:l[l_gcJQu.n! ical inn/Jbapp~JI'i Iin ~~/p '..!Sc :m: h Rcsul l~ . a~.n '.'TXT C NT
R N0=-L!Xf1 I &TXT ITH.·I NO= 131 ).
~ See the PUC's Preliminary Order (Item No. 180) at pgs. 3-11 (available online here:
ht I p:/h mer.: htlll!!e .puc .lc \ as .!!U\ /W cbApp/1 nlcrchan !.!l!!appl1c:u iun/dhapp~/li Iin !!'>lp!.!Scarch Rc~y!!., . a~p..7.JXJ l"}}.I
R NU=..J.2X61 & TXT ITE M NO= I X2 ).

Plaintiffs First Amended Petition                                                                                                       Page 15
         6.23     On January 15, 2015, Georgetown and the District entered into a Second

Amendment to the Asset Transfer and Utility System Consolidation Agreement ("Second

Amended Agreement" or "Second Amendment"). The Second Amendment served primarily to

provide that Georgetown and the District intended for the Asset Transfer Agreement to constitute

a contract made under Texas Water Code Section 13.248. The PUC later determined that this

statute does not apply to Georgetown's Application. 5 Nevertheless, the PUC also indicated that

Georgetown's Applications may be processed under other provisions of the Water Code without

any further amendment of the Application or further notice being published regarding the sarne. 6

         6.24     On April 4, 2015, House Bill 4172 was introduced in the Texas House of

Representatives relating to the dissolution of CTSUD. This bill was introduced in accordance

with terms of the Asset Transfer Agreement providing that CTSUD and Georgetown will pursue

efforts to seek passage of legislation that would authorize the immediate dissolution of the

District. The bill proposed legislation that would have authorized the District board to adopt an

order that would dissolve the District and affect a transfer of its assets to Georgetown. House Bill

4712 would have attempted to further preclude any judicial review of the Board's order

dissolving the District. On April 22, 2015, Defendant CTSUD Directors Delton Robinson and

Michael Sweeney as well as other CTSUD and City representatives testified at a public hearing

before the Texas House of Representatives' Special Committee on Special Purposes Districts in

favor of House Bill 4172. Conversely, several witnesses testified in opposition to House Bill

4172 and submitted letters to members of congress opposing the bill.                       House Bill 4172 did not
                                          7
pass during the legislative session. Therefore, the CTSUD has not been legally dissolved.


5
  See PUC Preliminary Order (Item No. 182) at pg. 7.
6
  See id. at pgs. 5-6.
7
  The legislative history for House Bi114172 is publicly available on the Texas Legislature's website here:
b!.!QJI\\ '' \\ .k!.':l~.-.t,tlc t' u ~/13 iiiLlH)(..up/1-li,t tlrv .•t-.px. .1Le!.!Sc,.,=R-lR&B iii=HB-ll72 .

Plaintiffs First Amended Petition                                                                                Page 16
                                                 VII.
                                CAUSES OF ACTION & AUTHORITIES

                             Illegal Dissolution and/or Consolidation

       7.1     As described above, the Asset Transfer Agreement provides that the City and

District agree to use best efforts to seek passage of legislation that would authorize the

immediate dissolution of the District. This is necessary because the City and District lack the

requisite statutory authority to dissolve or consolidate the District.

       7.2     A political subdivision authorized to be created pursuant to legislative authority

may be dissolved only pursuant to legislative authority. See Ringling v. City of Hempstead, 193

F. 596, 599 (5th Cir. 1911); Hamess v. State, 13 S.W. 535, 537 (Tex. 1890); Largen v. State ex

rei. Abney, 13 S.W. 161, 163 (Tex. 1890); Watts v. Double Oak Indep. Sch. Dist., 377 S.W.2d

779, 780 (Tex. Civ. App.-Fort Worth 1964, no writ); Tex. Att'y Gen. No. GA-0663 (2008). As

the Texas Supreme Court has described, '"[t]he state creates such [municipal] corporations for

public ends, and they will and must continue until the legislature annuls or destroys them, or

authorizes it to be done."' Tex. Att'y Gen. Op. No. GA-0663 (2008) (citing Largen, 13 S.W. at

162; see also Ringling, 193 F. at 599 ("It is well settled that a municipal corporation can only be

dissolved by legislative action."); Hamess, 13 S.W. at 537 (stating that "[m]unicipal

corporations can be created only in the manner provided by law, and when created must continue

until abolished in some legal method"). This principle applies to political subdivisions other than

cities. See Watts, 377 S.W.2d at 780; Tex. Att'y Gen. Op. No. GA-0663.

        7.3     The District is a special utility district created pursuant to Chapter 65 of the Texas

Water Code. In sections 65.727 through 65.731 of the Water Code, the Texas Legislature has

provided the sole method by which the directors of such a district are authorized to dissolve it.

Section 65.727 specifically provides that a district's board may dissolve a special utility district,


Plaintiffs First Amended Petition                                                            Page 17
"if the board considers it advisable before the issuance of any bonds, notes, or other

indebtedness." TEX. WATER CODE§ 65.727(a) (emphasis added). To effect such a dissolution, a

majority of the board must find "before the issuance of bonds, notes, or other obligations or the

final lending of its credit in another form that the proposed undertaking for any reason is

impracticable or apparently cannot be successfully and beneficially accomplished" and must

hold a public hearing on a proposal to dissolve the district. !d. §§ 65.727(b), 65.728, 65.729. "If

the board unanimously determines from the evidence that the best interests of the persons and

property in the district will be served by dissolving the district, the board shall enter the

appropriate findings and order in its records dissolving the district. Otherwise the board shall

enter its order providing that the district has not been dissolved." !d. § 65.730 (emphasis added).

A board's decree to dissolve a special utility district is subject to appeaL/d. § 65.731.

       7.4     The District has been operating as a viable retail water utility for more than

twenty years. The Asset Transfer Agreement acknowledged that the District had more than $60

million in assets and approximately $15 million in outstanding debt obligations. Only six

members of the District's Board approved the Agreement. The District's Board has not

conducted a public hearing on a proposal to dissolve the District. As such, it is clear that the

District cannot dissolve pursuant to section 65.727. Nevertheless, the terms of the District's

Asset Transfer Agreement and the First Amendment expressly incorporate terms providing for

and causing CTSUD's dissolution. Therefore, the Asset Transfer Agreement and First

Amendment affect an illegal dissolution.

       7.5     Chapter 65 also includes provisions authorizing the consolidation of two special

utility districts. See TEX. WATER CODE§§ 65.723- 65.726. This process requires the electoral

approval of both district's qualified voters. !d. § 65.724. The City is not a special utility district,



Plaintiffs First Amended Petition                                                             Page 18
and the District has not conducted an election authorizing its consolidation with the City. As

such, it is clear that the District cannot dissolve pursuant to Chapter 65 of the Water Code.

       7.6.    Chapter 49 of the Water Code contains additional provisions generally applicable

to special utility districts. This Chapter provides the TCEQ with the authority to dissolve a

district that is inactive for a period of five consecutive years and has no outstanding bonded

indebtedness. /d. § 49.321. This process requires the TCEQ to conduct its own investigation

regarding the propriety of dissolution, conduct a public hearing, and adopt an order providing for

dissolution. ld. §§ 49.322. Such an order may be appealed to a district court for de novo review.

/d.§ 49.326.

       7.7.    The Asset Transfer Agreement acknowledges that in September 2013, the District

was active and had outstanding bonded indebtedness. As such, it is clear that the District cannot

dissolve pursuant to Chapter 49 of the Water Code. Nevertheless, the terms of the District's

Asset Transfer Agreement and the First Amendment expressly incorporate terms providing for

and causing CTSUD's dissolution. Therefore, the Asset Transfer Agreement and First

Amendment affect an illegal dissolution.

       7.8     A contract to fulfill an obligation which cannot be performed without violating

the law contravenes public policy and is void. Lewis v. Davis, 199 S.W.2d 146, 149 (Tex. 1947).

Therefore, the Asset Transfer Agreement and the amendments thereto are void.

                                  Illegal Gram of Public Funds

       7.9.    The Texas Constitution places limits on the power of a local government to

transfer funds to any other entity. Article ill, section 52 of the Texas Constitution provides that

the legislature may not authorize any county, city, or other political corporation of the state "to

lend its credit or to grant public money or thing of value in aid of, or to any individual,



Plaintiffs First Amended Petition                                                          Page 19
association or corporation whatsoever." TEX. CONST. art. III, § 52; see also id. art. XI, § 3

(similar provision). These provisions bar donations of funds from one governmental entity to

another, as well as donations from governmental entities to private entities. See Harris Cnty.

Flood Control Dist. v. Mann, 140 S.W.2d 1098 (Tex. 1940); San Antonio Indep. Sclz. Dist. v.

Board of Trs. of San Antonio Elec. & Gas Sys., 204 S.W.2d 22 (Tex. Civ. App.-El Paso 1947,

writ refd n.r.e.); Tex. Att'y Gen. Op. No. JC-0335 (2001).

       7.10    When a political subdivision transfers funds, it must be for a public purpose with

a clear public benefit received in return. See Mann, 140 S.W.2d at 258-59. To insure that the

political subdivision receives its consideration, viz., accomplishment of the public purpose, the

political subdivision must retain some degree of control over the performance of the contract.

Key v. Comm'rs. Court ofMarimz Cnty., 727 S.W.2d 667, 669 (Tex. App.-Texarkana 1987, no

writ). Hence, a political subdivision cannot grant funds to a municipal corporation, but it may

contract with it to provide services or accomplish a purpose that the political subdivision is

authorized to provide. See Tex. Att'y Gen. Op. No. JC-0335 (2001).

       7.11    Water districts are political subdivisions. See TEX. CON ST. art. XVI, § 59; Willacy

Cnty. Water Control & Improvement Dist. No. 1 v. Abendroth, 177 S. W .2d 936 (Tex. 1944). As

such, the Texas Constitution prevents a special utility district from making a gift or grant of

public funds or property to another public or private entity.

       7.12    As discussed above, the Asset Transfer Agreement indicates that the District has

more than $60 million in assets, and provides that the City with a net acquisition of assets valued

at more than $46 million. In September 2014, CTSUD illegally consummated the asset transfer

pursuant to the First Amended Asset Transfer Agreement. The City has produced a Financial

Report for fiscal year 2014 which reports that Georgetown experienced a 91.8% increase in



Plaintiffs First Amended Petition                                                         Page 20
revenue over the prior year, including $71.5 million in capital grants and contributions due

primarily to the acquisition of CTSUD. Hence, under the First Amendment to the Asset Transfer

Agreement, the City acquired the District's water system, which the City has valued at more than

$70 million, as well as the District's water reserves and the revenues from its profitable retail

water utility.

        7.13     The First Amended Asset Transfer Agreement affected a transfer of the District's

entire water system to the City without consideration. This transaction clearly is a financial

benefit to the City, but does not provide any clear public benefit to the District, the District's

customers, or landowners within the District. Rather, it transferred the District's water utility

system to Georgetown and imposed an improper surcharge of $4.75 per meter per month for

District customers to fund Georgetown's operation of the water system under CTSUD's CCN.

Further, the Asset Agreement provides for the District's dissolution and negates any method to

insure that any public purpose could be accomplished. Therefore, it provides an illegal grant of

public funds.

        7.14     A contract to fulfill an obligation which cannot be performed without violating

the law contravenes public policy and is void. Lewis v. Davis, 199 S.W.2d at 149. Therefore, the

Asset Transfer Agreement and the amendments thereto are void.

                            Ultra Vires Acts of District Board Members

        7.15     A government official commits an ultra vires act when he or she acts without

lawful authority. City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009). An official acts

without lawful authority when he violates state law, acts beyond the limits of his authority, or

misinterprets a law he is charged with administering. See id.; Tex. Educ. Agency v. Leeper, 893

S.W.2d 432 (Tex.1994) (suit challenging state officials' construction of compulsory school-



Plaintiffs First Amended Petition                                                        Page 21
attendance law); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401,405 (Tex.l997) ("A private litigant

does not need legislative permission to sue the State for a state official's violations of state

law."); Cobb v. Harrington, 190 S.W.2d 709, 712 (Tex. 1945) (suit to declare government

officials were wrongfully compelling plaintiffs to pay certain taxes). Sovereign immunity does

not bar a suit against government officials whose acts are ultra vires. Heinrich, 284 S.W.3d at

372.

       7.16    CTSUD is a special utility district created pursuant to Chapter 65 of the Texas

Water Code and is considered a conservation and reclamation district under Article XVI, Section

59, of the Texas Constitution. TEX. CONST. art. XVI,§ 59; TEX. WATER CODE§ 65.011. Such a

district may be created "to purchase, own, hold, lease, and otherwise acquire sources of water

supply; to build, operate, and maintain facilities for the transportation of water; and to sell water

to towns, cities, and other political subdivisions of this state, to private business entities, and to

individuals." TEX. WATER CODE§ 65.012(1). A district has the functions, powers, authority, and

rights that will permit accomplishment of the purposes for which it is created. /d. § 65.20 l.

Their assets and authorities may not be transferred of sold for purposes other than to carry out

their lawful rights and duties. See id. § 49.213; TEX. Gov'TCODE § 79l.Oll(c).

       7.17.   Special utility districts are governed by a board of elected directors. TEX. WATER

CODE §§ 65.101, 65 . 103. In sections 65.727 through 65.731 of the Water Code, the Texas

Legislature has provided the sole method by which the directors of such a district are authorized

to dissolve the district. See id. §§ 65.727-.731. Section 65.727 specifically provides that a

district's board may dissolve a special utility district, "if the board considers it advisable before

the issuance of any bonds, notes, or other indebtedness." /d. § 65.727(a) (emphasis added). This




Plaintiffs First Amended Petition                                                            Page 22
District, however, is not eligible to dissolve pursuant to section 65.727 because it has issued

indebtedness.

       7.18     A special utility district generally may not furnish, make available, render, or

extend retail water or sewer utility service to any area to which retail water utility service is

being lawfully furnished by another retail public utility without first having obtained a CCN that

includes the area in which the consuming facility is located. See id. §§ 13.242(a), .252, .254.

Further, municipally owned or operated utilities are generally prohibited from providing retail

water utility service within the area certificated to another retail public utility without first having

obtained from the utility commission a CCN that includes the areas to be served. /d. § 13.247(a).

In order to obtain a CCN for a particular area, a retail public utility generally must file an

application requesting the PUC to either grant or amend its CCN. /d. §§ 13.241-.244. The

District holds a CCN for covering nearly all of the land within its territory. As such, the City may

not lawfully provide water utility service to any area within CTSUD's CCN. Conversely, if

CTSUD transfers its CCN to the City, CTSUD will not be able to lawfully provide water utility

service to any areas within its own territory. As such, CTSUD's agreement to seek approval to

transfer its CCN to the City will render it incapable of providing water utility service to its own

areas and customers and thus will negate its ability to carry out the purpose for which it was

created under Texas law.

       7.19     The terms of the Asset Transfer Agreement (including amendments) provide for

the transfer of the CTSUD's water system, water rights, and virtually all of its assets to the City.

The Agreement further provides for the transfer of CTSUD's CCN to the City. Accordingly, the

Agreement expressly provides for a transaction that will make it impossible for CTSUD to

accomplish of the purposes for which it is created. Pursuant to the First Amended Agreement,



Plaintiffs First Amended Petition                                                             Page 23
the CTSUD and the City affected dissolution of the District and an illegal grant of the District's

assets to the City. Moreover, the Amended Transfer Agreement expressly provides that CTSUD

and the City will seek ex post facto legislative ratification for the dissolution, which they are now

actively pursuing. These are all acts which are outside of the legal authority of the District's

directors.       Therefore, when the CTSUD Directors approved the original Asset Transfer

Agreement and the amendments thereto, the directors committed ultra vires acts outside their

authority.

                   PUC Approval Sought to Affect an Illegal Asset and CCN Transfer

          7.20     Georgetown and CTSUD are retail public utilities. See TEX. WATER CODE §

13.002(19). Each holds a CCN to provide retail water utility service to their respective service

areas. A retail public utility generally may not furnish, make available, render, or extend retail

water utility service to any area to which retail water utility service is being lawfully furnished

by another retail public utility without first having obtained a CCN that includes the area in

which the consuming facility is located. /d. § l3.242(a); see also id. §§ 13.252, 13.254. In other

words, a CCN provides a retail public utility with the exclusive right (i.e., a monopoly) to

provide retail water service within its certificated territory. In order to obtain a CCN for a

particular area (including an area served by another CCN holder), a retail public utility generally

must file an application requesting the PUC to either grant or amend its CCN. /d.§§ 31.241-

13.244.

          7.21     The Asset Transfer Agreement provides for the transfer of the District's entire

CCN to Georgetown. An agreement to transfer all of the customers and the entire CCN of one of

the retail public utility to another necessarily seeks to decertify one retail public utility while

amending the CCN of the other. Accordingly, the PUC issued a Preliminary Order providing



Plaintiffs First Amended Petition                                                           Page 24
that Georgetown's Application must meet the standards set out it the Texas Water Code Section

13.254 and associated PUC rules for the revocation of the a CCN, as well as Texas Water Code

Sections 13.241 andl3 .246 and associated rules to amend a CCN to incorporate new service

areas.

         7.22    There are no provisions in Chapter 13 of the Water Code authorizing the

wholesale transfer of a political subdivision's or municipality's CCN. The sole provision in

Chapter 13 addressing the transfer of an entire CCN applies only to a "utility" or a "water supply

or sewer service corporation," both of which are defined to exclude municipal corporations and

political subdivisions (e .g., special utility districts). See id. § § 13.002(23), 13.301. This is

understandable because special utility districts like the Chisholm Trail Special Utility District are

created by statute to operate and maintain water utility services for the public benefit. See TEX.

CONST. art. XVI,§ 59; TEX. WATER CODE§ 65.012. Special utility districts' assets and rights

may not be transferred or sold for purposes other than to carry out those districts' lawful rights

and duties. See TEX. WATER CODE§ 49.213; TEX. Gov'T CODE§ 791.011(c). An agreement to

transfer the entire service area, all of the customers, and the entire CCN of a special utility

district to another retail public utility would be antithetical to the purpose for which such a

district is created. Therefore, Georgetown's Application seeks PUC approval to affect an illegal

transfer of the District's CCN.

         7.23.   Section 13.254 of the Water Code governs the process whereby the PUC may

revoke the CCN of a water utility. See id. § 13.254. It specifically applies to situations where a

certificate holder has agreed in writing to allow another retail public utility to provide service

within its service area without amending its certificate. !d. § 13.254(a)(3). Such a revocation

requires that the PUC provide notice, conduct a hearing, and enter an order pursuant to section



Plaintiffs First Amended Petition                                                           Page 25
13.254.      A retail public utility may not in any way render retail water service directly or

indirectly to the public in an area that has been decertified under this section without providing

compensation for any property that the PUC determines is rendered useless or valueless to the

decertified retail public utility as a result of the decertification. !d. § 13.254(d). The amount of

compensation shall be determined by a qualified individual or firm serving as a certified

appraiser. /d. § 13.254(f). The compensation must be just and adequate taking numerous factors

into consideration, including but not limited to: the value of the service facilities of the retail

public utility located within the area in question; the amount of any expenditures for planning,

design, or construction of service facilities that are allocable to service to the area in question;

the amount of the retail public utility's contractual obligations allocable to the area in question;

any demonstrated impairment of service or increase of cost to consumers of the retail public

utility remaining after the decertification; the impact on future revenues lost from existing

customers; and necessary and reasonable legal expenses and professional fees. /d. § 13.254(g).

          7 .24.   In support of its Application, Georgetown has asserted that decertifying the

District's CCN would not render any of the District's property useless or valueless because

Georgetown acquired the District's assets prior to the PUC ordering a decertification.            As

discussed above, Georgetown did not compensate the District for any of its assets; it simply

acquired them. Georgetown and the District did not consult an independent appraiser or use any

of the factors identified in Section 13.254 to value the District's assets. Rather, Georgetown

acquired the District's assets prior to decertification, in order to circumvent the statutory process

for ensuring that the District and its customers receive adequate compensation for its assets.

Therefore, Georgetown's Application seeks PUC approval to affect an illegal revocation of the

District's CCN.



Plaintiffs First Amended Petition                                                           Page 26
        7.25   As discussed above, a retail public utility must amend its CCN to incorporate

another utility's water service area before it may provide retail water service to another utility's

customers. Sections 13.241 and 13.246 of the Texas Water Code provide the standards for CCN

amendments. In determining whether to grant or amend a CCN, the PUC shall ensure that the

applicant possesses the financial, managerial, and technical capability to provide continuous and

adequate service. TEX. WATER CODE § 13.241(a). In making this determination, the PUC must

consider numerous public interest factors including whether an applicant has the financial ability

of the applicant to pay for the facilities necessary to provide continuous and adequate service and

the financial stability of the applicant.    /d. § 13.246(c).    Georgetown's Application plainly

provides that it intends to utilize the District's water system and assets to obtain the financial and

technical capability to provide water service to the District's customers and service area.

Georgetown's Application necessarily assumes the legality of the Asset Transfer Agreement.

Meanwhile, the PUC indicated that Georgetown's Application would be addressed without

considering the dissolution of the District or the asset transfer between the District and

Georgetown. Nevertheless, granting Georgetown's Application will necessarily will render the

District financially and legally incapable of providing retail water utility service to its own

service territory. According, Georgetown's Application will result in an illegal dissolution of the

District.   Therefore, Georgetown's Application seeks PUC approval to affect an illegal

revocation of the District's CCN.

        7.26   The PUC lacks jurisdiction over applications and proceedings that are not

permitted by law, including proceedings referred to the State Office of Administrative Hearings.

There is no statutory authority for a transfer of the District's water system and CCN.

Accordingly, Georgetown's Application and Asset Transfer Agreement seek PUC approval to



Plaintiffs First Amended Petition                                                            Page 27
affect an illegal dissolution of the District and transfer of the District's CCN and assets.

Therefore, the PUC lacks jurisdiction over Georgetown's Application.

       7.27     Following the initiation of Plaintiffs lawsuit, the PUC asserted that it possessed

jurisdiction to process and approve Georgetown's Application notwithstanding that it affect an

illegal dissolution of the District and transfer of the District's CCN and assets. Accordingly, the

administrative proceeding continued over the Protestants' objection that the Application was

being improperly considered notwithstanding the pendency of this lawsuit challenging the

illegality of the Asset Transfer Agreement and the PUC's lack jurisdiction over the Application.

Ultimately, the PUC issued an order approving the Application, based in large part upon the

erroneous assumption that the Asset Transfer Agreement was not unlawful and that the PUC had

jurisdiction to affect an illegal dissolution of CTSUD and transfer of its assets and CCN to

Georgetown. The PUC issued is final order on January 13, 2016. The Protestants filed a timely

motion for rehearing. None of the Commissioners voted to add the motion for rehearing to an

open meeting agenda, which would be required for the Commissioners to grant said motion. See

16 Tex. Admin. Code § 22.264(c) ("An affirmative vote by one commissioner is required for

consideration of the motion at an open meeting"). Accordingly, the Protestants' motion for

rehearing will be overruled by operation of law, and the PUC's order will be appealable on

March 8, 2016. See Tex. Gov't Code§§ 2001.045, 2001.146(c) ("[a] state agency shall act on a

motion for rehearing not later than the 55th day after the date the decision or order that is the

subject of the motion is signed or the motion for rehearing is overruled by operation of law."),

2001.171.     Consequently, Protestants properly exhausted all administrative remedies.

       7.28     The PUC asserts that is properly exercised jurisdiction over Georgetown's

Application pursuant provisions of the Texas Water Code governing the manner in which water



Plaintiffs First Amended Petition                                                         Page 28
utility CCN may be granted, revoked or amended. See e.g., The PUC Plea to the Jurisdiction at

pg. 4 (citing Tex. Water Code §§ 13.241, 13 .254).           This claim is erroneous for numerous

reasons.

        7.29    Chapter 13 of the Water Code regulates water rates and services.             See id §§

13.001- 13.523. Subchapter G deals specifically with certificates of convenience and necessity.

See id. §§ 13.241- 13.257.     The 83rd Texas Legislature adopted acts transferring the economic

regulation of water and sewer service from the Texas Commission on Environmental Quality

("TCEQ") to the PUC. See Act of May 13, 2013, 83rd Leg., R.S., ch. 170 (HB 1700), § 2.96;

2013 Tex. Gen. Laws 725, 730; Act of May 13, 2013, 83rd Leg., R.S. ch. 171 (SB 567), § 96,

2013 Tex. Gen. Laws 772. According, effective September 1, 2014, Chapter 13 was amended

transferred jurisdiction over CCN applications from the TCEQ to the PUC. Consequently, in

order to obtain a CCN for a particular area, a retail public utility generally must file an

application requesting the PUC to either grant or amend its CCN. ld. §§ 31.241 - 13.244.

Likewise, an application must be filed to revoke a retail public utility's CCN (i.e., monopolistic

right) to provide water utility service to any portion of its service territory. See e.g., id. § 13.254.

        7.30    The PUC was only granted authority to exercise economic regulation over water

utility services.   Chapter 13 of the Water Code does not govern the creation, operation, or

governance of special utility districts. Chapter 13 of the Water Code does not provide the PUC

with authority to dissolve special utility districts or consolidate them with municipal utilities. As

discussed above, Chapters 49 and 65 of the Water Code contain the statutory provisions that

prescribe when and how special utility districts may consolidate or be dissolved.              Notably,

Chapter 49 provides the TCEQ, not the PUC, with the authority to dissolve a district that is

inactive for a period of five consecutive years and has no outstanding bonded indebtedness. !d. §



Plaintiffs First Amended Petition                                                              Page 29
49.321. This process requires the TCEQ to conduct its own investigation regarding the propriety

of dissolution, conduct a public hearing, and adopt an order providing for dissolution. ld. §§

49.322. Such an order may be appealed to a district court for de novo review. ld. § 49.326. It is

undisputed that CTSUD is not eligible for dissolution under Chapters 49 or 65 of the Water

Code. Nevertheless, it is also undisputed that a PUC order revoking the District's CCN and

amending Georgetown's CCN to include the District's service area would render the District

legally incapable of provides its own constituents with water utility service. That is a purpose for

which the District was created and conferred statutory authority. See e.g., Tex. Water Code §§

49.211, 65.012.       Accordingly, a PUC order revoking the District's CCN and amending

Georgetown's CCN to include the District's service area would affect an illegal dissolution of

the District. However, the PUC lacks jurisdiction under Chapter 13 of the Texas Water Code to

affect such a dissolution. Moreover, such action by the PUC would violate the provision in

Chapter 49 and 65 of the Water Code.          Therefore, the PUC lacked the requisite statutory

authority to process or approve Georgetown's Application under Chapter 13 of the Water Code.

       7.31    The PUC further lacks jurisdiction under Chapter 13 to take action that will

nullify statutory voting rights.   The laws of this State provide landowners, consumers and

qualified voters of special utility districts with the statutory right to vote for the management of

their districts. See id. §§ 65.022, 65.101- 65.103. As explained above, amending Georgetown's

CCN to include CTSUD's certificated service area has the vital effect of giving Georgetown the

exclusive right to provide retail water utility service to CTSUD customers and landowners. See

id. §§ 13.002(19), 13.242, 13.252, 13.254. Accordingly, granting such a CCN amendment

would give Georgetown a monopoly in the area CTSUD was created to serve.                   See id. §

13.001(b) (finding that retail public utilities are by definition monopolies in the areas they serve).



Plaintiffs First Amended Petition                                                            Page 30
Consequently, the Texas Water Code clearly establishes that if such a CCN amendment is

approved, the District's consumers and landowners will lose the ability to vote for the governing

body of the political subdivision created to serve them. See id. Therefore, a PUC order revoking

the District's CCN and amending Georgetown's CCN to include the District's service area

would nullify the District landowners' and consumers' statutory right to vote on water utility

issues. There are no statutes providing the PUC with the jurisdiction or authority, however, to

take action that will affect statutory voting rights. Therefore, the PUC lacked the requisite

statutory authority to process or approve Georgetown's Application under Chapter 13 of the

Water Code.

                      Public Utility Commissioners lzave acted Ultra Vires.

       7.32    A government official commits an ultra vires act when he or she acts without

lawful authority. Heinrich, 284 S.W.3d at 372. An official acts without lawful authority when he

violates state law, acts beyond the limits of his authority, or misinterprets a law he is charged

with administering. See id.; Tex. Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex.l994) (suit

challenging state officials' construction of compulsory school-attendance law); Fed. Sign v. Tex.

S. Univ., 951 S.W.2d at 405 ("A private litigant does not need legislative permission to sue the

State for a state official's violations of state law."); Cobb v. Harrington, 190 S.W.2d at 712 (suit

to declare government officials were wrongfully compelling plaintiffs to pay certain taxes).

Sovereign immunity does not bar a suit against government officials whose acts are ultra vires.

Heinrich, 284 S.W.3d at 372.

       7.33    CTSUD is a special utility district created pursuant to Chapter 65 of the Texas

Water Code and is considered a conservation and reclamation district under Article XVI, Section

59, of the Texas Constitution. TEX. CONST. art. XVI, § 59; TEX. WATER CODE§ 65.011. The



Plaintiffs First Amended Petition                                                          Page 31
District was created for the purpose of and conferred with the requisite statutory authority to

provide its constituents with water utility service. See id. §§ 49.211, 65.012.        Accordingly, the

laws of this State provide CTSUD's landowners, consumers and qualified voters with the

statutory right to vote for the management of the Districts. See id. §§ 65.022, 65 .101 - 65.103.

Nevertheless, the Commissioners directed that Georgetown's Application be processed an

application to revoke the District's CCN and amend Georgetown's CCN to include the District's

service area would, notwithstanding the knowledge that their approval of such an application

would:       (i) render the District legally incapable of providing water utility service to its

constituents; (ii) affect an illegal nullification of the District landowners' and consumers'

statutory right to vote on water utility issues; and (iii) affect an illegal dissolution of the District.

Moreover, on January 13, 2016 the Commissioners signed an order revoking CTSUD's CCN

amending Georgetown's CCN to include the District's revoked service area. Therefore, the

Commissioners, in their official capacities, have committed ultra vires acts outside their

authority.

                              Violations of the Texas Open Meetings Act
                             by CTSUD and the District Board Members

         7.34     CTSUD and the District Board Members have violated the Texas Open Meetings

Act in multiple ways. The Texas Open Meetings Act requires that "every regular, special, or

called meeting of a governmental body shall be open to the public, except as provided by" the

Act. TEX. Gov'T CODE §551.002. However, CTSUD and the District Board Members' actions

related to the transfer of CTSUD's CCN and the transfer of CTSUD's assets pursuant to the

Asset Transfer Agreement and amendments were clouded by confusion and secrecy.

Throughout the transfer of CTSUD's CCN and the transfer of CTSUD's assets, CTSUD failed to

adequately apprise the public of its intended action, participated in walking quorums and


Plaintiffs First Amended Petition                                                               Page 32
improperly and illegally convened into closed session ("executive session") to discuss the

contract to transfer CTSUD's CCN and transfer of CTSUD's assets without invoking the proper

and applicable exceptions to the Texas Open Meetings Act ("TOMA") and/or without statutory

authority to have such discussions in executive session. Any actions taken in open session on the

transfer of CTSUD's CCN and the transfer of CTSUD's assets were merely a rubber stamp of

decisions made in improper executive sessions and/or outside of any public meeting.

       7.35    The District Board Members attempted to avoid compliance with TOMA by

deliberating about public business without a quorum being physically present in one place at one

time but discussing the same public business between all members. The District Board Members

conducted serial meetings among various members related to the transfer of CTSUD's CCN and

the transfer of CTSUD' s assets and had communications as a group and/or partial group to

discuss various aspects of the transfer of CTSUD's CCN and the transfer of CTSUD's assets in

an attempt to avoid the requirements of open session.

       7.36.   In addition to walking quorums, CTSUD on a number of occasions violated

TOMA, including but not limited to:

               a.     The District Board Members discussed the transfer of CTSUD's CCN and

                      the transfer of CTSUD's assets, negotiated the terms of the transfer of

                      CTSUD's CCN and the transfer of CTSUD's assets, and agreed upon the

                      terms of the transfer of CTSUD's CCN and the transfer of CTSUD's

                      assets in secret meetings and in one or more executive session;

               b.     CTSUD failed to properly notice meetings concerning the transfer of

                      CTSUD's CCN and the transfer of CTSUD's assets by improperly

                      noticing discussions as executive session that were impermissible; and



Plaintiffs First Amended Petition                                                       Page 33
                c.      Discussions, decisions, and actions regarding the transfer of CTSUD's

                        CCN and the transfer of CTSUD's assets were improperly held in

                        executive session.

        7.37    Because of the significant violations of the Texas Open Meetings Act, Chisholm

Trail Stakeholders Group requests this Court to enter a declaratory judgment reversing and

voiding all actions taken by CTSUD and its District Board Members concerning the transfer of

CTSUD's CCN and the transfer of CTSUD's assets.

                                                 VIII.
                                   Claim for Declaratory Relief

        8.1     The Asset Transfer Agreement (including amendments) provides for the illegal

transfer of the District's entire retail water utility system to the City and the CCN under which it

maintains the right to serve as the authorized entity providing retail water utility services within

its territory. The Agreement necessarily precludes the District from accomplishing the purposes

for which it was created and provides for its illegal dissolution. Accordingly, the District's

Directors have engaged in ultra vires acts in violation of the Texas Constitution, the Texas Water

Code and other statutes by approving: (1) an agreement to illegally grant CTSUD's water system

and other public assets to the City; (2) an agreement to illegally dissolve CTSUD; (3) an

agreement to transfer illegally CTSUD's CCN to the City; and (4) expending public funds to

obtain the illegal dissolution of the District and the illegal transfer its assets to the City. Further,

Georgetown's Application seeks PUC approval to affect an illegal dissolution ofthe District and

transfer of the District's CCN and assets.

        8.2     The PUC lacks jurisdiction under Chapter 13 of the Water Code to consolidate the

District with Georgetown, or to dissolve the District. Further, PUC lacks jurisdiction under

Chapter 13 of the Water Code to nullify the District landowners' and consumers' statutory right


Plaintiffs First Amended Petition                                                              Page 34
to vote on water utility issues. Nevertheless, the Commissioners directed that Georgetown's

Application be processed an application to revoke the District's CCN and amend Georgetown's

CCN to include the District's service area would, notwithstanding the knowledge that their

approval of such an application would: (i) render the District legally incapable of providing

water utility service to its constituents; (ii) nullify the District landowners' and consumers'

statutory right to vote on water utility issues; and (iii) affect a dissolution of the District.

Moreover, on January 13, 2016 the Commissioners signed a final order revoking CTSUD's CCN

amending Georgetown's CCN to include the District's revoked service area.

       8.3     This Court has jurisdiction to issue declaratory relief to compel compliance to

with statutory and constitutional provisions, and to enjoin public officials from expending public

funds under a contract that is void or illegal. See TEX. Crv. & REM CoDE§ 37.004; Sawyer Trust,

354 S.W.3d at 393; Osbome v. Keith, 177 S.W.2d at 200.       Further, the Court has jurisdiction to

issue declaratory relief when a governmental entity lacks jurisdiction under a challenged statute

to take actions that will result affect an illegal dissolution of a political subdivision and/or

illegally nullify its constituents' statutory voting rights. See Tex. Civ. Prac. & Rem. Code §

37.006; Heinrich, 284 S.W.3d at 373 n. 6; Leeper, 893 S.W.2d at 446. Moreover, a justiciable

controversy regarding whether a state agency or officer has acted beyond statutory authority

provides a jurisdictional basis for a Uniform Declaratory Judgment Act action seeking

construction of that statutory authority. Leeper, 893 S.W.2d at 446; Texas Logos, L.P. v. Texas

Dep't of Transp., 241 S.W.3d 105, 114 (Tex. App.-Austin 2007, no pet.). Such suits do not

implicate sovereign immunity. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405; Texas

Logos, L.P., 241 S.W.3d at 114.




Plaintiffs First Amended Petition                                                         Page 35
          8.4.     The Plaintiff represents the interests of landowners within the District's

certificated service area and the interests of District customers. As such, Plaintiff is an interested

party affected by the Agreement and under the provisions of the Texas Constitution and Texas

Water Code, among other Texas law's regulating special utility districts, and is entitled to bring

this action. Further, Plaintiff is an interested party affected by the PUC and its Commissioners

because they have acted without authority to approve and affect the Agreement. The Plaintiff's

members include District customers and property owners who oppose the Agreement and have

protested CTSUD and the City's efforts to enter into the illegal Asset Transfer Agreement,

illegally transfer CTSUD's CCN, assets, and water system to the City, and illegally dissolve the

District. This included efforts to protest Georgetown's Application and exhaust all administrative

remedies.        Plaintiff was organized to advocate for and protect the interests of residents and

landowners in the rural areas of Bell, Burnet and Williamson Counties in receiving adequate

water utility service. As such, a controversy exists concerning the validity of the Agreement and

the actions and legal authority of Defendants. Accordingly, Plaintiff respectfully requests that the

Court: (1) determine the validity of the Agreement (including amendments) and Texas laws

relied upon by Defendants to affect the Agreement; (2) determine the ultra vires character of the

Defendants' acts; (3) issue declaratory relief to compel Defendants' compliance with statutory

and constitutional provisions; (4) issue declaratory relief to remedy Defendants' expenditures of

public funds under a contract that is void or illegal; and (5) issue declaratory relief to remedy

Defendants' illegal dissolution of the District and the illegal nullification of statutory voting

rights.

          8.5      Plaintiff respectfully requests that the Court make the following declarations:

                    a. The District issued debt and/or loaned its credit, and therefore cannot dissolve
                       pursuant to Texas Water Code section 65.727;


Plaintiffs First Amended Petition                                                              Page 36
             b. The District cannot consolidate with the City of Georgetown pursuant to
                Texas Water Code sections 65.723- 65.726;

             c. The District incurred bonded indebtedness and has not been inactive for five
                consecutive years, and therefore cannot dissolve pursuant to Texas Water
                Code section 49.321 ;

             d. The District is not otherwise authorized by Texas law to dissolve;

             e. The District, the District Directors, the City, the PUC and the Commissioners
                have engaged in an unlawful dissolution of the District;

             f.    The City's Application, seeking PUC approval to transfer CTSUD's CCN to
                   Georgetown, will render CTSUD incapable of providing water utility service
                   within its own boundaries, in violation of state law.

             g. The District has transferred its public assets to the City in violation of article
                ill, section 52 of the Texas Constitution;

             h. CTSUD transferred its water system to the City and cannot provide water
                utility service within the District's boundaries in violation of state law;

              i.   The Asset Transfer Agreement and its amendments, violate Texas law,
                   contravene public policy, and are void;

             j.    Georgetown's Application seeks PUC approval to affect an illegal dissolution
                   of the District and transfer of the District's CCN and assets;

              k. The PUC lacks jurisdiction over Georgetown's Application;

             I.    Chapter 13 of the Texas Water Code does not provide the PUC with authority
                   or jurisdiction to affect a dissolution of the District;

              m. Chapter 13 of the Texas Water Code does not provide the PUC with authority
                 or jurisdiction to render the District incapable of providing water utility
                 service within its own boundaries;

              n. Chapter 13 of the Texas Water Code does not provide the PUC with authority
                 or jurisdiction to nullify the District landowners' and consumers' statutory
                 right to vote on water utility issues;

              o. The Commissioners committed ultra vires acts outside of their legal authority
                 in approving the Application filed by Georgetown to effectuate the Asset
                 Transfer Agreement;



Plaintiffs First Amended Petition                                                        Page 37
               p. The District and the Defendant Directors of the District have violated the
                  Texas Open Meetings Act; and

               q. The Defendant Directors of the District committed ultra vires acts outside of
                  their legal authority in approving and effectuating the Asset Transfer
                  Agreement.

                                                 IX.
                                 CLAIM FOR INJUNCTIVE RELIEF

       9.1.    The Asset Transfer Agreement (including amendments) provides for the illegal

transfer of the District's entire retail water utility system to the City. The Agreement necessarily

precludes the District from accomplishing the purposes for which it was created, and provides

for its illegal dissolution. Accordingly, the District's directors have engaged in ultra vires acts

approving: (1) an agreement to illegally grant of CTSUD's water system and other public assets

to Georgetown; (2) an agreement to illegally dissolve CTSUD; (3) an agreement to transfer

CTSUD's CCN to Georgetown; and (4) other acts seeking the illegal dissolution of the District

and the illegal transfer its assets to Georgetown. Further, Georgetown's Application seeks PUC

approval to affect an illegal dissolution of the District and transfer of the District's CCN and

assets. Moreover, PUC lacks the authority and jurisdiction over an application that will render

the District legally incapable of providing its constituents with water utility service, nullify those

constituents' statutory voting rights, and affect the District's dissolution.      Furthermore, the

Commissioners have engaged in ultra vires acts while processing and approving Georgetown's

Application.

       9.2     This Court has jurisdiction to issue injunctive relief to compel compliance with

statutory and constitutional provisions and to enjoin public officials from expending public funds

under a contract that is void or illegal. See TEX. Crv. & REM CODE §§ 37.004, 37.011; Sawyer

Trust, 354 S.W.3d at 393; Osbome v. Keith, 177 S.W.2d at 200. Defendants continue to engage



Plaintiffs First Amended Petition                                                            Page 38
in these illegal and ultra vires acts. These violations will continue if the Court does not enjoin the

Defendants. Accordingly, Plaintiff respectfully requests that this Court issue injunctive relief,

both temporary and permanent: (1) enjoining the transfer of the District's assets and water

system to the City; (2) enjoining Defendants from taking any further acts under the Agreement

(including amendments); (3) enjoining the City from collecting any revenue from the customers

of the District, including the illegal surcharge; (4) enjoining the PUC, the Commissioners, or any

administrative law judge from making any decision or final order regarding Georgetown's

Application; (5) staying or enjoining all proceedings before the PUC and State Office of

Administrative Hearings related to Georgetown's Application, pending further order of the

Court; (6) voiding and/or enjoining the illegal and ultra vires acts of the PUC and its

Commissioners; (7) enjoining the transfer of the District's CCN to the City; (8) enjoining

Defendants from taking further acts without lawful authority, as set forth above; (9) preventing

the dissolution, transfer or waste of the District's assets and water system; {10) issue injunctive

relief necessary to remedy the PUC's illegal acts and the Commissioners' ultra vires acts; and

( 11) issue any injunctive relief necessary to remedy Defendants' illegal expenditures of public

funds under an contract that is void or illegal.

                                                   X.
       PERMANENT INJUNCTION FOR VIOLATIONS OF THE TEXAS OPEN MEETINGS ACT

        10.1    Upon final trial on the merits, the Chisholm Trail SUD Stakeholders Group seeks

a permanent injunction voiding and reversing any transfer of CTSUD's CCN to the City of

Georgetown and the transfer of CTSUD's assets pursuant to the Asset Transfer Agreement and

its amendments. CTSUD and its elected officials violated the Act prior to the illegal and void

attempted transfer of CTSUD's CCN and the illegal and void transfer of CTSUD's assets. There

is a likelihood of continued violations if this Court does not enjoin the CTSUD and its Board


Plaintiffs First Amended Petition                                                            Page 39
Members.          As such, the Chisholm Trail Stakeholders Group requests that the Comt enjoin

CTSUD and its Board Members from continuing to violate the Texas Open Meetings Act, as set

forth above.

                                                     XI.
                                CLAil\11 FOR ATTORNEYS' FEES AND COSTS

          11.1      Plaintiff is entitled to recover costs and reasonable and necessary attorney fees

under Texas Civil Practice & Remedies Code section 37.009 because this is a suit for declaratory

relief.

                                                     XII.
                                               JURY DEMAND

          12.1      Plaintiff demands a jury trial and tenders the appropriate fee with this petition.

                                                    XIII.
                                                  PRAYER

          13.1.     WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be

cited to appear and answer herein, and that on notice and hearing, the Court grant Plaintiff the

relief to which it is entitled, as described in more detail above, including but not limited to:

          (A)       A declaratory judgment that Defendants have acted illegally and ultra vires by

                    acting to illegally dissolve CTSUD;

          (B)       A declaratory judgment that Defendants have acted illegally and ultra vires by

                    acting to illegally transfer CTSUD's assets to the City;

          (C)       A declaratory judgment that the Asset Transfer Agreement, including any

                    amendments, between CTSUD and the City is illegal and void;

          (D)       A declaratory judgment that Georgetown's Application seeks PUC approval to

                    affect an illegal dissolution of the District and transfer of the District's CCN and

                    assets;


Plaintiffs First Amended Petition                                                                Page 40
       (E)    A declaratory judgment that the PUC lacks jurisdiction over Georgetown's

              Application;

       (F)    A declaratory judgment that the Commissioners have acted illegally and ultra

              vires by processing and approving Georgetown's Application;

      (G)     Injunctive relief enjoining, staying, voiding, and reversing Defendants' illegal and

              ultra vires acts as requested above;

      (H)    Injunctive relief enjoining, staying, voiding, reversing, and preventing any acts to

             implement the Asset Transfer Agreement, including any amendments;

      (I)    Injunctive relief staying and enjoining all proceedings before the PUC and State

             Office of Administrative Hearings related to Georgetown's Application, including

              any amendments, pending further order of the Court;

      (J)    Injunctive relief enjoining, staying, voiding, and reversing any proposal for

             decision or final order by the PUC and/or any presiding officer who has or will

             conduct any hearing (including any Administrative Law Judge with SOAH)

              related to Georgetown's Application, including any amendments;

      (K)    Injunctive relief enjoining the transfer of the District's CCN to Georgetown;

      (L)    A declaratory judgment that CTSUD and the District's Board members violated

              the Texas Open Meetings Act;

      (M)    A declaratory judgment that the transfer of CTSUD's CCN to the City of

             Georgetown and the transfer of CTSUD's assets pursuant to the Asset Transfer

             Agreement and amendments are unauthorized, void, and of no legal effect

             because of violations of the Texas Open Meetings Act;




Plaintiffs First Amended Petition                                                        Page 41
      (N)    A permanent injunction enjoining, staying, voiding, and reversing CTSUD's

             actions related to the transfer of CTSUD's CCN to the City of Georgetown and

             the transfer of CTSUD's assets pursuant to the Asset Transfer Agreement and

             amendments;

      (0)    A permanent injunction enjoining, staying, reversing, voiding, and preventing the

             effectiveness of the transfer of CTSUD's CCN to the City of Georgetown and the

             transfer of CTSUD's assets pursuant to the Asset Transfer Agreement and

             amendments;

      (P)    A permanent injunction enjoining and preventing CTSUD and the District's

             Board members from continuing to violate the Open Meetings Act;

      (Q)    An award of reasonable and necessary attorneys' fees;

      (R)    Costs of court; and

      (S)    Such other relief to which Plaintiff may be entitled at law or in equity.




                                            SBN: 01090000
                                            j .alli~on@ allison-bass.com

                                            J. Eric Magee
                                            SBN: 24007585
                                            e.ma!!ee@allison-bass.com

                                            Phillip L. Ledbetter
                                            SBN: 24041316
                                            p.ledbetter@ allison-bass.com




Plaintiffs First Amended Petition                                                        Page 42
                                    ALLISON, BASS & MAGEE, L.L.P.
                                    A.O. Watson House
                                    402 W. 12th Street
                                    Austin, Texas 78701
                                    (512) 482-0701 telephone
                                    (512) 480-0902 facsimile




Plaintiffs First Amended Petition                                   Page 43
                                                 VERIFICATION
..   STATE OF TEXAS                          §
                                             §
     COUNTY OF TRAVIS                        §

             Before me, the undersigned Notary Public, on this day personally appeared John Fisher,
     who being first duly 'sworn on oath deposes and says that he has read the foregoing Plaintiff's
     First Amended Petition, that he has personal knowledge of the facts stated therein, and that they
     are true and correct.




            SUBSCRJBED AND SWORN TO before me the undersigned Notary Public, on              this~
     day of March, 2016.




                 .     JENN!FER STOKES
                     My Commission Expires          My Commission Expires:
                         June 5, 2019




     Plaintiff's First Amended Petition                                                       Page 43




                                                               --- - - -- - - -
                               CERTIFICATE OF SERVICE

       I hereby certify that on the 8th day of March, 20 16, I served the foregoing document via
facsimile, electronically, and/or certified mail, return receipt requested to the following:

Jose E. De La Fuente
SBN: 00793605
jdcla rucntc@ I !!Ia \\ tirm.com
Lambeth Townsend
SBN: 20167500
ItO\\ n..,cn d @' h!ld\\ Ctrm.cnm
Ashley D. Thomas
SBN: 24090430
athom.t-.(g l!!l.m tirm.cnm
Lloyd Gosselink, Rochelle & Townsend, P.C.
816 Congress Avenue, Suite 1900
Austin, Texas 78701
Telephone: (512) 322-5800
Facsimile: (512) 472-0532

Attomeys for Defendants tlze City of
Georgetown, Clzislzolm Trail Special Utility
District and tlze District Directors.


Breck Harrison
SBN: 24007325
hharri ;,on (g j\v .com
Leonard Dougal
SBN: 06031400
ldou!!ul@ j1.\ .com
Jackson Walker, L.L.P.
100 Congress Avenue, Suite 1100
Austin, Texas 78701
Telephone: (512) 236-2000
Facsimile: (512) 236-2002

Attomeys for Defendants Chisholm Trail
Special Utility District and District Directors
Delton Robinson, Ed Pastor, Mike Sweeney,
James Pletcher, Robert Kostka, David
Maserang, Gary Goodman, and Robert
Johson, Jr.




Plaintiffs First Amended Petition                                                      Page 45
Daniel C. Wiseman
SBN: 24042178
Dan ic I. wi:-.c nwn (fl 1c' a-..tttonw\ >!Cnc ral. Q.CJ\
Office of the Texas Attorney General
Environmental Protection Division (MC-066)
P.O. Box 12548
Austin, Texas 78711-2548
Telephone: (512) 463-2012
Facsimile: (512) 320-0911

Attomeys for the Public Utility Commission of
Texas



                                                            Phillip L. Ledbetter




Plaintiffs First Amended Petition                                                  Page 46
