      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00686-CV



                            Save Our Springs Alliance, Inc., Appellant

                                                    v.

 City of Kyle; Jack Goodman; Craig Smith; Mary Stone; Gary Franklin; and Bob Larson,
    each in their Official Capacity as Directors of the Barton Springs-Edwards Aquifer
  Conservation District and the Barton Springs-Edwards Aquifer Conservation District,
                                          Appellees


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. 10-1267, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                                             OPINION


                Save Our Springs Alliance, Inc. (“the Alliance”) appeals a final judgment rendered

by the district court after the court had stricken the Alliance’s plea in intervention. In a single issue,

the Alliance contends that the court abused its discretion in granting the City’s motion to strike its

plea in intervention and therefore its judgment should be reversed and the cause remanded. We will

vacate the district court’s judgment and remand the cause.


                       FACTUAL AND PROCEDURAL BACKGROUND

                The City of Kyle applied to the Barton Springs-Edwards Aquifer Conservation

District (“the District”) for an amendment to its production permit allowing it to pump additional
water from the Barton Springs Edwards Aquifer.1 The City sought to increase permitted pumpage

from 165,000,000 gallons per year to 350,000,000 gallons per year. The additional water was to be

available on an interruptible basis pursuant to a conditional permit allowing the District to curtail

the amount of water available during periods of drought. The Alliance filed a protest and requested

a hearing on the permit application. The District’s board commenced a contested-case hearing on

the permit application and formally admitted the City, the Alliance, and the District’s general

manager as parties to the proceeding. The District’s board then held a hearing on the merits of the

permit application, at the conclusion of which it issued an order partially approving the City’s permit

application, with the condition that the City be granted only 100,700,000 additional gallons per year

rather than the 185,000,000 additional gallons per year that it had requested. The District’s refusal

to grant the full amount of water requested was based on its interpretation of a rule requiring an

applicant to establish that it has available a certain amount of water from an “alternative water

supply” in order to qualify for a conditional permit.

               The City filed a motion for rehearing with the District challenging the denial of the

permit for the full amount of water requested. The Alliance did not file a motion for rehearing.

After its motion for rehearing was denied, the City filed a suit for judicial review in Hays County

district court. See Tex. Water Code Ann. § 36.251 (West 2008) (person affected by or dissatisfied

with order made by conservation district may file suit against district or its directors to challenge

validity of order). The City also included a request for a declaration that the District could not deny




       1
          The District is a legislatively created groundwater conservation district subject to chapter
36 of the water code. See Tex. Water Code Ann. §§ 36.001-.419 (West 2008 & Supp. 2012).

                                                  2
a permit based on a misapplication of its existing rules that effectively changed the permitting

criteria. The District filed a general denial and asserted the affirmative defense of immunity from

the City’s request for declaratory relief. The Alliance subsequently filed a plea in intervention that

asserted a general denial of “every averment of law and fact” contained in the City’s petition. See

Tex. R. Civ. P. 60 (party may file pleading subject to being stricken by court for sufficient cause or

on motion of any party). The City filed a motion to strike the Alliance’s plea in intervention, which

the trial court granted. Thereafter, the City and the District filed cross-motions for summary

judgment. The trial court issued an order denying the District’s motion for summary judgment and

granting the City’s. The court’s judgment ordered the cause remanded to the District with

instructions to conduct a limited evidentiary hearing “on the sole question whether the City has

demonstrated that it meets the Alternative Water Supply requirement.” After the judgment was

signed, the City and the District filed a “Joint Motion to Approve Agreed Final Judgment” informing

the court that the City and the District had “reached settlement” and requesting that the court render

final judgment in the form attached to their motion.          The court signed an “Agreed Final

Judgment” reciting that “entry of an agreed final judgment is appropriate” and, among other things,

ordering that:


       • The City is granted 84,300,000 gallons of water to its Class B Conditional and
       Transport Permits, to become effective as of the date of signature of this Agreed
       Final Judgment.

       • The City holds a Class B Conditional Permit in the amount of 185,000,000 gallons
       of water per year and a Transport Permit in the cumulative amount of 350,000,000
       gallons of water per year, to become effective as of the date of signature of this
       Agreed Final Judgment.



                                                  3
       • The City has met the criteria in the District’s rules for the issuance of a Class B
       Conditional Permit in the amount of 185,000,000 gallons of water, and has
       specifically satisfied District Rules 2-1, 3-14(A)(16), and 301.24, related to the
       District’s Alternative Water Supply requirements.


The judgment recited that the District’s board


       has taken formal action to approve issuance of the permit amendments of 84,300,000
       gallons of water, the District has issued and tendered to the Court a Class B
       Conditional Permit in the total amount of 185,000,000 gallons of water per year and
       a Transport Permit in the cumulative amount of 350,000,000 gallons of water per
       year, and said permit has been delivered to the City contemporaneous with entry of
       this Order.


The judgment further stated that “there will not be a remand back to the District in this cause” and

“the above-referenced cause is DISMISSED in its entirety, with prejudice to refiling same.” The

Alliance then perfected this appeal.


                                          DISCUSSION

               On appeal, the Alliance complains that the trial court erred by granting the City’s

motion to strike its plea in intervention and requests that this Court reverse the trial court’s order

granting the motion to strike its plea, set aside the order on summary judgment, and vacate the

Agreed Final Judgment. We need not consider whether the trial court abused its discretion in

striking the Alliance’s plea in intervention, however, because we will vacate the court’s judgment

for an unrelated reason: the court lacked jurisdiction to render the Agreed Final Judgment, and,

consequently, the judgment is void.




                                                  4
               Although the Alliance does not argue on appeal that the court’s judgment is void, it

has long been held that courts of appeals may reverse the judgment of a trial court for an unassigned

error if the error is truly “fundamental.” See Ramsey v. Dunlop, 205 S.W.2d 979, 982-83 (Tex.

1947). “[W]hen the record affirmatively and conclusively shows that the court rendering the

judgment was without jurisdiction of the subject matter, the error will also be regarded

as fundamental.” McCauley v. Consol. Underwriters, Inc., 304 S.W.2d 265, 266 (Tex. 1957);

see also In re J.F.C., 96 S.W.3d 256, 290-92 (Tex. 2002) (O’Neill, J., dissenting) (discussing

fundamental-error doctrine). “With ‘jurisdictional-based’ fundamental-error review, an appellate

court may reverse the judgment of the court below for error—without conducting a review for

harm—even if the error is not preserved.” In re J.F.C., 96 S.W.3d at 291 (O’Neill, J., dissenting)

(citing Baker v. Hansen, 679 S.W.2d 480, 481 (Tex. 1984)). Because, as explained below, in the

present case the trial court lacked jurisdiction to render the Agreed Final Judgment, the error is

fundamental and we may consider the jurisdictional defect even though it was not raised by

the Alliance. McCauley, 304 S.W.2d at 266 (reaffirming survival of the fundamental-error

review doctrine).2




       2
           We also observe that an agency does not have the authority to modify its original order
once a suit for judicial review has been filed. See Tex. Gov’t Code Ann. § 2001.1775 (West 2008)
(“[A]n agency may not modify its findings or decision in a contested case after proceedings for
judicial review of the case have been instituted under Section 2001.176 and during the time that the
case is under judicial review.”); Granek v. Texas State Bd. of Med. Exam’rs, No. 03-07-00380-CV,
2008 WL 744707, at *4 (Tex. App.—Austin Mar. 19, 2008, pet. denied) (agency precluded by
section 2001.1775 from modifying its findings or decision in contested case after proceedings for
judicial review have begun, and agency could not have issued another final order even if it had
wanted to do so).

                                                 5
                A court’s subject-matter jurisdiction traditionally consists of a power, conferred by

constitutional or statutory authority, to decide the type of claim alleged in the plaintiff’s petition and

to award an authorized form of relief. See City of Celina v. Dynavest, 253 S.W.3d 399, 402 (Tex.

App.—Austin 2008, no pet.) (citing Sierra Club v. Texas Natural Res. Conservation Comm’n,

26 S.W.3d 684, 687 (Tex. App—Austin 2000), aff’d, 70 S.W.3d 809 (Tex. 2002)). A constitutional

delegation of general power to the district courts is found in article V, section 8 of the Texas

Constitution. See Tex. Const. art. V, § 8. A statutory grant of power to district courts is found in

section 24.008 of the government code. See Tex. Gov’t Code Ann. § 24.008 (West 2004) (assigning

to district courts power to hear and determine any cause cognizable by courts of law or equity and

to grant any relief that could be granted by either courts of law or equity). Apart from these general

grants of adjudicative power, a statute may grant the district courts, or one or more of them, special

statutory jurisdiction to hear, determine, and award relief in specific types of cases that are

themselves authorized by statute. Sierra Club, 26 S.W.3d at 688. Section 36.413 of the water code

provides that a party to a contested hearing may file suit against the conservation district under

section 36.251 to appeal a decision on a permit. See Tex. Water Code Ann. § 36.413 (West 2008).

Section 36.251 states:


        A person, firm, corporation, or association of persons affected by and dissatisfied
        with any provision or with any rule or order made by a district is entitled to file a suit
        against the district or its directors to challenge the validity of the law, rule, or order.
        The suit shall be filed in a court of competent jurisdiction in any county in which the
        district or any part of the district is located. The suit may be only be filed after all
        administrative appeals to the district are final.




                                                    6
Id. § 36.251 (West 2008); see Texas Dep’t of Protective & Regulatory Servs. v. Mega Child

Care, Inc., 145 S.W.3d 170, 198 (Tex. 2004) (holding that judicial review provisions provide

limited waiver of sovereign immunity). The district court’s review on appeal is governed by the

substantial-evidence rule as defined by section 2001.174 of the government code. See Tex. Water

Code Ann. § 36.253.

               Section 2001.174 applies when, as here, the law authorizes review of a decision in

a contested case under the substantial-evidence rule. See Tex. Gov’t Code Ann. § 2001.174 (West

2008). The statute empowers the reviewing court to award specified forms of relief in such suits.

Id. The power to award relief is an essential component of subject-matter jurisdiction and may be,

as here, restricted by a statute limiting the kinds of relief that can be rendered in certain kinds of

cases. See Sierra Club, 26 S.W.3d at 688 (citing Morrow v. Corbin, 62 S.W.2d 641, 645 (Tex.

1933)). Section 2001.174 permits the reviewing court to examine the agency record for error in

cases of substantial-evidence review, but if prejudicial error is found, the statute empowers the court

only to “reverse or remand the case” to the agency. See Tex. Gov’t Code Ann. § 2001.174(2). “This

is a direct restriction on the special statutory jurisdiction delegated to the court in the APA—the

court is not free generally to render the kind of relief it believes the agency should have awarded

based on the agency’s record.” Sierra Club, 26 S.W.3d at 688. Consequently, the authority of

district courts to fashion remedies is limited. Texas Dep’t of Transp. v. T. Brown Constructors, Inc.,

947 S.W.2d 655, 659 (Tex. App.—Austin 1997, pet. denied). This limitation arises from the

separation-of-powers provision of the Texas Constitution, see Tex. Const. art. II, § 1, which, in the

context of judicial review of administrative decisions, ensures that discretionary functions delegated



                                                  7
to administrative agencies by the legislature are not usurped by the judicial branch. T. Brown

Constructors, 947 S.W.2d at 659.

               In the present case, the Agreed Final Judgment purports to find facts (that the City

has met the criteria for issuance of a permit) and to render judgment granting a permit. Section

2001.174 does not empower courts to take such action, which goes beyond their limited authority

in a substantial-evidence review. Having concluded that there was error prejudicing substantial

rights of the City’s, the court’s only options were to reverse or remand the case for further

proceedings. See Tex. Gov’t Code Ann. § 2001.174. Accordingly, the district court’s Agreed Final

Judgment, which had the effect of rendering a specific judgment, contravened the direct restriction

on the special statutory jurisdiction delegated to the court in its substantial-evidence review.

Because the judgment violated the separation-of-powers doctrine of the Texas Constitution, it is void

and its rendition was fundamental error. See Sierra Club, 26 S.W.3d at 688; T. Brown Constructors,

947 S.W.2d at 660. Applying the fundamental-error review doctrine, we vacate the Agreed Final

Judgment and remand the cause to the district court.3




       3
          We note that the effect of vacating the Agreed Final Judgment is to revive the June 1, 2011,
summary-judgment order. In that order the trial court remanded the cause to the District, which it
was authorized to do pursuant to government code section 2001.174(2). However, the judgment also
instructed the District to “fully grant the City’s application without any permit conditions beyond
what were specified in Section 2 of the District Order” if the City “establishes to the District’s
satisfaction that it meets the Alternative Water Supply requirement.” As circumscribed by section
2001.174, the trial court is not authorized to usurp the District’s authority and discretion to issue
permits. See T. Brown Constructors, 947 S.W.2d at 660. On remand, we are confident that the trial
court will reconsider the form of its order on the cross-motions for summary judgment.

                                                  8
                                        CONCLUSION

               The district court was without jurisdiction to render the Agreed Final Judgment. We

vacate that judgment and remand the cause to the district court for further proceedings consistent

with this opinion.



                                             _____________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Rose

Vacated and Remanded

Filed: August 30, 2012




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