TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                     ON MOTION FOR REHEARING



                            NO. 03-07-00455-CV



                        Walter West, P.E., Appellant

                                     v.

              Texas Commission on Environmental Quality and
                   Abitibi-Consolidated Corp., Appellees


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
 NO. D-1-GN-06-000201, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING


                                     &

                            NO. 03-07-00456-CV



 Walter West, P.E., and The Lone Star Chapter of The Sierra Club, Appellants

                                     v.

              Texas Commission on Environmental Quality and
                   Abitibi-Consolidated Corp., Appellees


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
 NO. D-1-GN-06-000598, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
                                            OPINION


                We withdraw our opinion and judgments issued May 29, 2008, and substitute the

following in their place. We overrule appellants’ motion for rehearing and rehearing en banc. These

appeals arise from two lawsuits brought by appellants Walter West, P.E., and the Lone Star Chapter

of the Sierra Club seeking judicial review of an uncontested decision by the executive director of the

Texas Commission on Environmental Quality granting a wastewater discharge permit to Abitibi

Consolidated Corp.1 Finding appellants’ lawsuits untimely because they were filed more than thirty

days after the effective date of the executive director’s decision, see Tex. Water Code Ann. § 5.351

(West 2000), the district court granted the Commission’s pleas to the jurisdiction and dismissed both

suits for lack of jurisdiction. Because we conclude there was no error in the district court’s dismissal

of appellants’ suits, we affirm the orders of dismissal.


                                          BACKGROUND

                Abitibi and its predecessor Donohue Industries, Inc. (collectively “Abitibi”) own and

operate a paper mill in Lufkin, Texas. The paper mill has been manufacturing paper since 1940. As

a result of its operations, the mill has been discharging wastewater pursuant to a state water quality

permit since 1961. In November 2000, Abitibi filed an application with the Commission for the

renewal and amendment of its permit, TPDES Permit No. 00368. Following a technical review of

the permit application, the executive director issued a preliminary decision that the requested permit

met the requirements of applicable law. The executive director’s preliminary decision triggered a


        1
          We granted the parties’ motion to consolidate these appeals for the limited purposes of
briefing and submission on a joint administrative record and a joint reporter’s record.

                                                   2
period of public notice and comment on the Abitibi application. After the close of the notice and

comment period, “affected persons”2 were entitled to submit a request for a contested case hearing.

See id. § 5.115 (West 2000).

                The Commission considered all of the requests for a contested case hearing at a public

meeting on June 15, 2005. After the meeting, the Commission issued an order granting only the

hearing request from Jo Ellen Atkinson. The Commission denied all other requests for a hearing,

including those submitted by West and the Sierra Club. The Commission determined that West and

the Sierra Club were not “affected persons” within the meaning of the water code. See id. §§ 5.115

(defining “affected person”), 5.5563 (prohibiting hearing unless requested by affected person as

defined in section 5.115) (West 2000).4




       2
         Section 5.115 of the water code defines the term “affected person.” Tex. Water Code Ann.
§ 5.115(a) (West 2000). The statute provides:

       For the purpose of an administrative hearing held by or for the commission involving
       a contested case, “affected person,” or “person affected,” or “person who may be
       affected” means a person who has a personal justiciable interest related to a legal
       right, duty, privilege, power, or economic interest affected by the administrative
       hearing. An interest common to members of the general public does not qualify as
       a personal justiciable interest. The commission shall adopt rules specifying factors
       which must be considered in determining whether a person is an affected person in
       any contested case arising under the air, waste, or water programs within the
       commission’s jurisdiction and whether an affected association is entitled to standing
       in contested case hearings.

Id.
       3
           Act of May 30, 1999, 76th Leg., R.S., ch. 1350, § 2, 1999 Tex. Gen. Laws 4570, 4570-72.
       4
           In its order, the Commission denied all motions for reconsideration.

                                                  3
               After the Commission referred Abitibi’s application to the State Office of

Administrative Hearings for a contested case hearing, Ms. Atkinson withdrew her request for a

hearing. Upon the withdrawal of Ms. Atkinson’s hearing request, the administrative law judge

cancelled the preliminary hearing and granted Abitibi’s motion to remand the application to the

executive director for further proceedings. See 30 Tex. Admin. Code § 80.101 (2007). Once the

Abitibi application was remanded to the Commission, it was deemed an uncontested matter pursuant

to the Commission’s rules. See id.

               On remand, the executive director granted the uncontested permit application as

authorized by law. See Tex. Water Code Ann. § 5.122 (West 2000) (delegating uncontested matters

to the executive director); 30 Tex. Admin. Code §§ 50.133 (2007) (authorizing executive director

to act on uncontested matters), 80.101 (2007) (remanding uncontested applications to executive

director). The executive director signed the permit on December 9, 2005, and his decision was

effective that same day. See 30 Tex. Admin. Code § 50.135 (2007). It is undisputed that West and

the Sierra Club received notice of the executive director’s decision.

               Section 5.351 of the water code allows a person to seek judicial review of a

Commission’s decision by filing a petition for judicial review within thirty days after the effective

date of the decision. Tex. Water Code Ann. § 5.351. West filed his petition for judicial review on

January 18, 2006, and the Sierra Club filed a separate petition for judicial review, joined by West

filing for a second time, on February 17, 2006. The district court determined that both petitions were




                                                  4
untimely, granted the Commission’s pleas to the jurisdiction,5 and dismissed appellants’ suits for

want of jurisdiction. These appeals followed.


                                           DISCUSSION

               In two issues, appellants contend that the district court erred in granting the

Commission’s pleas to the jurisdiction and Abitibi’s motion for summary judgment. Appellants

claim that the district court erred in determining that judicial review of the Commission’s decision

and the proceedings leading up to that decision were governed by the water code and not the

Administrative Procedure Act (“APA”) and that the district court erred in determining that it lacked

jurisdiction to consider appellants’ petitions for judicial review.


Standard of review

               Whether the district court had subject matter jurisdiction over appellants’ claims

presents a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d

922, 928 (Tex. 1998). When reviewing a district court’s ruling on a plea to the jurisdiction, we

begin with the pleadings and we look to the pleader’s intent. Texas Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The pleader has the initial burden to allege facts

that affirmatively demonstrate the district court’s jurisdiction to hear the cause. Id. We construe the

pleadings liberally in favor of jurisdiction and, unless the pleadings affirmatively negate the

existence of jurisdiction, the plaintiff should be given an opportunity to amend. Id. at 226-27.




       5
          The district court also granted Abitibi’s motion for partial summary judgment for lack of
jurisdiction.

                                                  5
Judicial review of the executive director’s decision

                In their first issue, appellants argue that the APA provides an independent right to

judicial review of contested case decisions and that the district court’s dismissal of their suits was

in error. We disagree.

                The supreme court held in Texas Natural Resource Conservation Commission

v. Sierra Club that “[a]n agency’s enabling legislation determines the proper procedures for

obtaining judicial review of an agency decision.” 70 S.W.3d 809, 811 (Tex. 2002) (citing Grounds

v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex. 1986), overruled in part on other grounds,

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2001)).               We therefore look to the

Commission’s enabling legislation to determine the proper procedures for judicial review. See id.

                Section 5.351 of the water code establishes the proper procedures for obtaining

judicial review of the Commission’s decision in this case.6 See Tex. Water Code Ann. § 5.351.

That section requires a person affected by the Commission’s decision to file a petition for judicial

review “within 30 days after the effective date” of the decision. See id. Subject to constitutional and


       6
           Section 5.351 states:

       (a)      A person affected by a ruling, order, decision, or other act of the commission
                may file a petition to review, set aside, modify, or suspend the act of the
                commission.

       (b)      A person affected by a ruling, order, or decision of the commission must file
                his petition within 30 days after the effective date of the ruling, order, or
                decision. A person affected by an act other than a ruling, order, or decision
                must file his petition within 30 days after the date the commission performed
                the act.

Tex. Water Code Ann. § 5.351 (West 2000).

                                                  6
statutory limitations, administrative agencies have discretion to set effective dates for their decisions

and orders. See Railroad Comm’n v. Lone Star Gas Co., 656 S.W.2d 421, 425-26 (Tex. 1983);

Heat Energy Advanced Tech. v. West Dallas Coalition for Envtl. Justice, 962 S.W.2d 288, 292-93

(Tex. App.—Austin 1998, pet. denied) (hereinafter “H.E.A.T.”); Young Trucking, Inc. v. Railroad

Comm’n, 781 S.W.2d 719, 720-21 (Tex. App.—Austin 1989, no writ). By rule, the Commission has

established that, unless otherwise stated therein, a permit is effective when signed by the executive

director. See 30 Tex. Admin. Code § 50.135. Because it was not otherwise stated in the permit, the

Abitibi permit was effective the day it was signed by the executive director—December 9, 2005.

See id. By statute then West and the Sierra Club were required to file their petitions for judicial

review within thirty days—or no later than January 8, 2006. See Tex. Water Code Ann. § 5.351.

                Appellants counter that section 5.351 does not govern judicial review in this instance

because the Abitibi application was a contested case and the APA provides an independent right

of judicial review in contested cases; therefore, the judicial review provisions of the APA, not the

water code, apply. In support of this argument, appellants rely on the supreme court’s decision in

Texas Department of Protective and Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170

(Tex. 2004). Appellants’ reliance on Mega Child Care is misplaced. The supreme court, in Mega

Child Care, held that “section 2001.171 of the APA provides an independent right to judicial review

when an agency enabling statute neither specifically authorizes nor prohibits judicial review.” Id.

at 197. In other words, the APA provides an independent right to judicial review when the agency’s

enabling act is silent. See id. But the water code is not silent. The water code expressly provides

a right to judicial review of Commission decisions. See Tex. Water Code Ann. § 5.351. Because



                                                   7
the water code expressly provides a right to judicial review, the supreme court’s holding in Mega

Child Care is inapposite.

               Appellants further argue that the APA applies because the Abitibi application was a

contested case, but this argument is without merit. Although we agree with appellants’ general

assertion that the APA provides for judicial review of an agency’s final decision in a contested case,

the Commission’s approval of the Abitibi application was not a final decision in a contested case

within the meaning of the APA. For this reason, we conclude the water code, not the APA, governs

judicial review of the Commission’s decision here.

               Section 2001.171 of the APA provides:


       A person who has exhausted all administrative remedies available within a state
       agency and who is aggrieved by a final decision in a contested case is entitled to
       judicial review under this chapter.


Tex. Gov’t Code Ann. § 2001.171 (West 2000) (emphasis added). By its plain language, section

2001.171 provides a right to judicial review of final agency decisions only in contested cases. Id.

The plain language of the water code, however, does not limit the right to judicial review

of Commission decisions only to contested cases. See Tex. Water Code Ann. § 5.351. The APA

defines “contested case” as “a proceeding, including a ratemaking or licensing proceeding, in which

the legal rights, duties, or privileges of a party are to be determined by a state agency after

an opportunity for adjudicative hearing.” See Tex. Gov’t Code Ann. § 2001.003(1) (West 2000).

The APA also defines “party” as “a person or state agency named or admitted as a party.” Id.

§ 2001.003(4) (West 2000).



                                                  8
               Appellants argue that once the Commission granted Ms. Atkinson’s request for a

hearing and referred the Abitibi application to SOAH, there was an opportunity for an adjudicative

hearing and, therefore, the judicial review provisions in the APA attached. Having once attached,

appellants contend that the proceeding always remained subject to judicial review under the APA.

Appellants’ argument misses the mark because it fails to consider the withdrawal of Ms. Atkinson’s

hearing request and the Commission’s rule providing for remand of uncontested matters.

               The Commission granted only one hearing request—the request submitted by

Ms. Atkinson. When the Commission referred the Abitibi application to SOAH, Ms. Atkinson and

Abitibi were the only parties to the proceeding within the meaning of the APA. See id. Although

allowed by the Commission’s rules, see 30 Tex. Admin. Code § 80.109 (2007) (designation of

parties), neither West nor the Sierra Club sought to be admitted as a party to the SOAH proceeding.

Under the Commission’s rules then, once Ms. Atkinson withdrew her request for a hearing, the ALJ

was required to grant Abitibi’s request to cancel the hearing and remand the application to the

executive director, see id. § 80.101 (allowing for remand to executive director). Because the hearing

had been cancelled, the Abitibi application no longer satisfied the APA definition of a “contested

case.” See Tex. Gov’t Code Ann. § 2001.003(1).

               The legislature has required administrative agencies to adopt rules of practice and

procedure stating the nature and requirements of all available formal and informal procedures. Id.

§ 2001.004(1) (West 2000). In section 80.101 of its rules, the Commission has provided that, if

all timely hearing requests are withdrawn or denied or if all named parties reach a settlement

and no facts or issues remain controverted, the ALJ shall grant an applicant’s request to remand



                                                 9
an application to the executive director and, after remand, the application shall be uncontested. See

30 Tex. Admin. Code § 80.101. The Commission granted only one request for a hearing, which was

later withdrawn, and no other parties had been named in the SOAH proceeding. As a result, the ALJ

was required to grant Abitibi’s motion to remand the application to the executive director as an

uncontested matter. See id. In light of the Commission’s rules, we reject appellants’ argument that

once the Commission refers a matter to SOAH for a hearing, it retains the status of a contested case

within the meaning of the APA simply by virtue of the Commission’s original referral.

               The Commission has complied with the legislature’s directive to adopt rules stating

the nature and requirements of all formal and informal procedures. See Tex. Gov’t Code Ann.

§ 2001.004(1). The record demonstrates that the Commission followed its rules. Because the

Commission’s decision approving the Abitibi application was not “a final decision in a contested

case,” we conclude that the APA provisions for judicial review in contested cases do not apply. See

id. § 2001.171 (providing “a person . . . who is aggrieved by a final decision in a contested case is

entitled to judicial review under this chapter.”)


Timeliness of petitions for judicial review

               Having concluded that the water code, not the APA, governs judicial review of

the Commission’s decision in these circumstances, we consider whether appellants properly invoked

the jurisdiction of the district court under the water code. See Tex. Water Code Ann. § 5.351.

Section 5.351 required appellants to file their petitions for judicial review within thirty days of

the effective date of the Commission’s decision. See id. Because the Commission’s decision was

effective December 9, 2005, appellants’ petitions were due on or before January 8, 2006. Although

                                                    10
West and the Sierra Club received notice of the executive director’s decision,7 neither West nor

the Sierra Club filed a timely petition for judicial review. West filed his initial petition for judicial

review on January 18, 2006—ten days after the deadline specified in the water code—and the Sierra

Club filed its petition for judicial review, joined by West, on February 17, 2006—more than one

month after the deadline specified in the water code.

                We conclude that both petitions for judicial review were untimely because they were

not filed within the thirty-day deadline specified in section 5.351 of the water code.8 We likewise

        7
           Although the notice of the executive director’s decision sets forth the procedures for filing
a “motion to overturn” and requesting the Commission to review the executive director’s decision,
it does not inform the recipient that, under the Commission’s rules, filing a motion to overturn does
not affect the executive director’s approval of the Abitibi application. See 30 Tex. Admin. Code
§ 50.139(d) (2007). Nor does the notice explain that in order to appeal the executive director’s
decision a person must file a petition for review in district court as required under the water
code—i.e., within thirty days of the effective date of the executive director’s decision. West and
the Sierra Club do not argue on appeal that the Commission’s notice was defective, and we recognize
that both West and the Sierra Club are represented by counsel. We observe, however, that the
Commission’s notice does not fully explain the range of options available to a person trying to
protest an application pending before the Commission, much less the impact of each available
option. The record reflects that West and the Sierra Club filed motions to overturn with the
Commission but did not file their petitions for judicial review until after the statutory deadline in
water code section 5.351 had passed. Had West and the Sierra Club been fully apprised of the range
of options available to them and the effects of each option, they may have decided to forego the
filing of a motion to overturn in favor of a timely petition for judicial review. As a practical matter,
appellants could have done both. See, e.g., Heat Energy Advanced Tech. v. West Dallas Coalition
for Envtl. Justice, 962 S.W.2d 288, 293 (Tex. App.—Austin 1998, pet. denied) (concluding
that petition for judicial review filed within section 5.351’s thirty-day time period properly invoked
district court’s jurisdiction even if motion for rehearing was required under the APA). By our
comments we do not suggest that West or the Sierra Club need not exhaust their administrative
remedies. We merely suggest that the notice provided by the Commission does not fully explain the
range of available options. See id.
        8
           To the extent appellants’ brief can be construed to claim that the filing of a motion to
overturn extended appellants’ deadline to file their petitions for judicial review, we reject that
argument. Appellants were required to file their petitions for judicial review within thirty days after
the effective date of the Commission’s decision. See Tex. Water Code Ann. § 5.351. Nothing in

                                                   11
conclude that appellants’ failure to comply with this statutory prerequisite deprived the trial court

of jurisdiction to consider appellants’ petitions for judicial review. See Tex. Gov’t Code Ann.

§ 311.034 (statutory prerequisites in a suit against governmental entity are jurisdictional); Sierra

Club, 70 S.W.3d at 811 (agency’s enabling act establishes proper procedure for obtaining judicial

review); Suchy v. Texas Nat. Res. Conservation Comm’n, No. 03-97-00714-CV, 1998 Tex. App.

LEXIS 7984, at *7-8 (Tex. App.—Austin 1998, no pet.) (not designated for publication) (holding

failure to comply with 30-day filing deadline in water code section 5.351 deprived the district court

of jurisdiction to consider suit for judicial review); see also Schroeder v. Texas Iron Works, Inc.,

843 S.W.2d 483, 486 (Tex. 1991) (holding filing deadline in the Texas Commission on Human

Rights Act, now chapter 21 of the labor code, is mandatory and jurisdictional); Texas Mun. League

v. Burns, 209 S.W.3d 806, 811-12 & n.9 (Tex. App.—Fort Worth 2006, no pet.) (holding filing

deadline in labor code section 410.252(a) is mandatory and jurisdictional). The district court

properly granted the Commission’s pleas to the jurisdiction.


Error in the proceedings before the Commission and SOAH

               To the extent appellants complain that the Commission erred in denying their requests

for a contested case hearing, that the ALJ improperly remanded the Abitibi application to the

executive director as an uncontested matter, or that the ALJ’s remand order deprived appellants of

the opportunity to seek admission as a party in the SOAH proceedings, none of these arguments



the water code allows this deadline to be extended, and the plain language of the Commission’s rules
provides that, unless expressly ordered by the Commission, a motion to overturn does not affect the
executive director’s action. See 30 Tex. Admin. Code § 50.139(d). Appellants do not contend, and
nothing in the record shows, that the Commission entered an express order to the contrary.

                                                 12
address appellants’ failure to timely file their petitions for judicial review as required in section 5.351

of the water code. We conclude appellants’ arguments are without merit.

                The Commission’s denial of appellants’ requests for a contested case hearing and the

ALJ’s order remanding the Abitibi application to the executive director were interim orders not

subject to appeal or judicial review.9 See City of Corpus Christi v. Public Util. Comm’n, 572 S.W.2d

290, 299-300 (Tex. 1978) (op. on reh’g) (recognizing “[c]oncern for efficient administrative

procedure requires consideration of the validity of interim orders only upon appeal from final

orders”). Each of these interim orders was subsumed within the Commission’s final decision to

approve the permit application and subject to judicial review on appeal therefrom. See id. To obtain

judicial review of these interim orders, appellants were required to seek judicial review of

the Commission’s final decision in compliance with section 5.351 of the water code. See id.; see

also Tex. Water Code Ann. § 5.351; Sierra Club, 70 S.W.3d at 811. Because appellants failed to

seek timely review of the Commission’s final decision, we conclude that the district court lacked

jurisdiction to review these interim orders. See City of Corpus Christi, 572 S.W.2d at 299-

300 (review of an agency’s interim orders occurs upon review of its final decision). We overrule

appellants’ first issue.




        9
          Even were we to hold that these interim orders were subject to judicial review under the
water code, appellants do not argue that their petitions for judicial review challenged each of these
orders in a timely manner or otherwise satisfied the requirements in section 5.351 of the water code.

                                                    13
Abitibi’s motion for partial summary judgment

                In their second issue, appellants argue that the district court improperly granted

Abitibi’s motion for partial summary judgment based on lack of jurisdiction. In light of our

conclusion that there was no error in the district court’s grant of the Commission’s pleas to

the jurisdiction dismissing appellants’ suits for lack of jurisdiction, we need not reach appellants’

second issue.


                                              CONCLUSION

                Because appellants did not file their petitions for judicial review within the time

period required in section 5.351 of the water code, we conclude the district court properly granted

the Commission’s pleas to the jurisdiction, and we affirm the district court’s orders dismissing

appellants’ suits for lack of jurisdiction.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed on Motion for Rehearing

Filed: July 31, 2008




                                                  14
