      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00699-CV



                                 The City of Austin, Appellant

                                                 v.

          Texas Commission on Environmental Quality and KBDJ, L.P., Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
    NO. D-1-GN-05-004217, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                                          OPINION


               Appellant, the City of Austin, filed suit against the Texas Commission on

Environmental Quality, challenging the Commission’s approval of a water pollution abatement plan

filed by KBDJ, L.P. relating to activities affecting the Edwards Aquifer. The district court entered

judgment in favor of the Commission and KBDJ. We hold that the effective date of the

Commission’s decision was not tolled by the City’s filing a motion to overturn and, therefore,

the City failed to file suit within 30 days after the effective date of the Commission’s decision

as required by Texas Water Code section 5.351(b). Consequently, we vacate the district court’s

judgment against the City and dismiss the City’s suit for want of jurisdiction.
Factual and Procedural Background

               KBDJ proposed to construct a limestone quarry pit in Hays County within the

recharge zone of the Edwards Aquifer. On December 1, 2003, KBDJ submitted an application to

the Commission for approval of its water pollution abatement plan (WPAP). See 30 Tex. Admin.

Code § 213.5(b) (2009) (required contents of WPAP). On October 28, 2005, the executive director

of the Commission approved the WPAP application, subject to the standard conditions and

special conditions set out in the written decision.1 See id. § 213.4(a) (2009) (WPAP to be reviewed

and approved by executive director).

               On November 21, 2005, the City filed with the Commission a motion to overturn

the executive director’s decision. See id. § 50.139(b) (2009) (requiring that motion to overturn be

filed within 23 days after date that notice of executive director’s action is mailed). The City and

other affected persons who also filed motions to overturn submitted supplemental briefing to the

Commission, and one of the affected persons filed an affidavit that had not been in the record at the

time of the executive director’s October 28 decision. On February 3, 2006, having considered the

written filings, oral argument, and responses to questions during a public meeting, the Commission

denied the City’s motion to overturn as well as the other affected persons’ motions.




       1
          The executive director had originally approved the WPAP application on June 22, 2004.
However, certain affected parties (not including the City) filed suit in Travis County district court
challenging the decision. The district court on September 19, 2005, reversed the approval of
KBDJ’s WPAP based on the lack of substantial evidence of the “80% reduction of the incremental
loading of total suspended solids” and “that there is no reasonable and practicable alternative to
sealing the [recharge] features.” During the following month, KBDJ submitted supplemental filings
to the executive director, and the executive director concluded in his October 28, 2005 decision that
the supplemental filings sufficiently addressed those two issues.

                                                 2
                The City filed suit against the Commission on February 23, 2006, challenging the

approval of KBDJ’s WPAP. On November 13, 2007, the district court entered judgment that the

Commission’s decision be affirmed.

                The City appeals,2 asserting that (1) the Commission did not have jurisdiction to

consider certain supplemental information filed by KBDJ, (2) the Commission failed to provide

affected persons with proper notification and opportunity to participate, and (3) certain conclusions

made in the October 28, 2005 decision were not supported by substantial evidence. In addition to

contesting the City’s points on appeal, the Commission and KBDJ contend that the City failed

to timely seek judicial review of the Commission’s decision and, therefore, the City’s lawsuit

should be dismissed for want of jurisdiction. We will address this issue before proceeding to the

merits of the City’s appeal. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443

(Tex. 1993) (considering matter of trial court’s jurisdiction before reaching merits of case, as subject-

matter jurisdiction is essential to authority of court to decide case).


Jurisdiction over the City’s Lawsuit

                The Commission and KBDJ contend that the City’s lawsuit is untimely.

Section 5.351(a) of the Texas Water Code provides for judicial review of a ruling, order, decision,

or other act of the Commission. Tex. Water Code Ann. § 5.351(a) (West 2008). Section 5.351(b)


        2
           The other affected persons who filed motions to overturn the executive director’s
October 28, 2005 decision—Neighbors Organized to Protect the Environment, Inc. (an organization
of Hays County homeowners and landowners), John Sikoski (whose homestead is near the proposed
quarry pit), and Anne Ashmun (also an owner of nearby land)—also sought judicial review in
district court and were parties to this appeal. However, these appellants filed unopposed motions
to dismiss their appeals, which this Court has granted.

                                                   3
states: “A person affected by a ruling, order, or decision of the commission must file his

petition [for judicial review] within 30 days after the effective date of the ruling, order, or decision.”

Id. § 5.351(b). There is no dispute that the City did not file suit within 30 days after the

executive director’s October 28, 2005 decision.


        Effective date of executive director’s decision

                The City argues that it complied with the 30-day requirement based on the

executive director’s decision not being “effective” until the Commission overruled the City’s

motion to overturn. See id. (30-day period commences on decision’s “effective date”). The City

filed its original petition in district court within 30 days of the Commission’s February 3, 2006 order

denying the City’s motion to overturn.

                This Court has held that a plaintiff’s failure to comply with section 5.351(b)

deprives the trial court of jurisdiction over the plaintiff’s petition for judicial review. See West

v. Texas Comm’n on Envtl. Quality, 260 S.W.3d 256, 263 (Tex. App.—Austin 2008, pet. denied).

In West, this Court also held that the 30-day period commenced when the executive director signed

the relevant order. See id. at 260.3 However, in so holding, this Court relied on section 50.135 of

the Commission’s rules, see id., which provides that an approval of the Commission “is effective

when signed by the executive director,” unless otherwise specified, see 30 Tex. Admin. Code




        3
          This Court issued its opinion in West v. Texas Commission on Environmental Quality,
260 S.W.3d 256 (Tex. App.—Austin 2008, pet. denied), on July 31, 2008, which was subsequent
to both the executive director’s December 9, 2005 decision in that case and his October 28, 2005
decision in this case.

                                                    4
§ 50.135 (2009).4 Chapter 50 of the rules applies generally to applications before the Commission.

See id. §§ 50.102, .131 (2009). The executive director in this case was acting in accordance with

chapter 213 of the Commission’s rules, which specifically pertains to “activities having the potential

for polluting the Edwards Aquifer.” See id. § 213.1 (2009). There is no provision in chapter 213

that expressly provides for when the “effective date” of an executive director’s action occurs, or that

expressly makes section 50.135 applicable.

               Although chapter 213 does not define a decision’s effective date, chapter 213

indicates that the executive director’s approval is the relevant action governing the applicant’s

subsequent obligations and deadlines. Under these Edwards Aquifer rules, no person may begin

construction of any activity that has a regulated relationship with the Edwards Aquifer until the

person files the appropriate application and the executive director reviews and approves the

application. See id. §§ 213.4(a)(1), .23(a)(1) (2009). The City is correct that chapter 213 authorizes

an applicant or affected person to file a motion to overturn with the Commission. However,

such motion is subject to section 50.139(d), see id. §§ 213.1(3), .20(c) (2009), which states that

“[a]n action by the executive director . . . is not affected by a motion to overturn filed under this

section unless expressly ordered by the commission,” id. § 50.139(d). It follows, then, that the

Commission’s consideration of and ruling on a motion to overturn will not affect the effectiveness

of the executive director’s decision unless so ordered by the Commission. In this case, the


       4
          The primary issue in West was whether the appellant’s application was a contested case,
in which case the Administrative Procedure Act (APA), not the water code, would govern
judicial review of the Commission’s decision. See 260 S.W.3d at 260-62; see also generally
Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. 2009) (APA). The City concedes that
this case is not a contested case and, therefore, that the water code governs, not the APA.

                                                  5
Commission has not made any statement that could be construed to alter the effectiveness of the

executive director’s decision.

                In addition, chapter 213 sets deadlines based on the executive director’s action,

not based on any review and approval by the Commission. Chapter 213 provides that the

executive director’s approval of an Edwards Aquifer plan “will expire two years after the date of

initial issuance,” with the possibility of extensions. Id. §§ 213.4(h), 213.23(g). Conversely, there

are no compliance timelines in the Edwards Aquifer rules tied to the Commission’s consideration

of a motion to overturn.

                The City contends that this case is similar to Greening v. Texas Water Commission,

No. 3-92-285-CV (Tex. App.—Austin Sept. 16, 1992, no writ) (not designated for publication). In

Greening, the Commission issued an order on August 9, the appellant filed a motion for rehearing

on August 20, the Commission denied the request for rehearing on September 18, and the appellant

filed his suit in district court on October 18. This Court held that the appellant satisfied water code

section 5.351 because he filed suit within 30 days of the date his motion for rehearing was overruled.

The City argues that the same analysis applies here. However, in Greening, different administrative

rules applied, and those rules expressly stated both that a petition for judicial review could be

filed within 30 days after an order became “final” and that an order became final on the date the

motion for rehearing was overruled. Neither rule applies here. The absence of such rules operates

against the City. Where, as here, the applicable rules indicate that the executive director’s decision

is effective upon its issuance, for this Court to hold that the filing of a motion to overturn postpones

that effective date would require that the rules so state, as was the case in Greening.



                                                   6
               The City also relies on the language of the executive director’s October 28, 2005

decision, which provides that “KBDJ or a person affected may file with the chief clerk a motion

to overturn the Executive Director’s final action on this Edwards Aquifer WPAP.” According to the

City, this language directs recipients to take further action—file a motion to overturn—in order to

bring the administrative matter to conclusion. However, contrary to the City’s reading, the cited

language does not direct the parties to extend the administrative process, and does not include any

assertion regarding a motion to overturn’s impact on the decision’s effectiveness. Rather, the

cited language merely informs the parties what administrative avenues remain available. It does not

speak at all to the availability of judicial review or the applicable deadline for seeking

judicial review.5 The fact that an avenue for administrative review was open did not foreclose

judicial review also being available, and the fact that administrative review was sought did not

foreclose judicial review ceasing to be available. See Heat Energy Advanced Tech., Inc. v. West

Dallas Coalition for Envtl. Justice, 962 S.W.2d 288, 290-91 (Tex. App.—Austin 1998, pet. denied)

(recognizing that, depending on applicable statutes and rules, judicial-review timetable can expire

before administrative remedies have been exhausted). The language of the executive director’s

decision neither addresses nor impacts the City’s deadline for seeking judicial review.

               The City contends that because its first opportunity to comment upon supplemental

filings by KBDJ was during the motion to overturn process, the executive director’s decision

could not have been effective prior to the Commission’s consideration of the City’s comments.


       5
         In West, this Court observed 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.” 260 S.W.3d at 262 n.7.

                                                 7
However, the City does not allege that the executive director’s acting absent the City’s responsive

briefing was a violation of the applicable statutes and rules. Moreover, this Court has previously

observed that an agency’s order may become effective prior to the final order entered in the

administrative process. See id. at 292-93. Given that the Commission refused to modify the

executive director’s decision after its review of the subsequently filed documents, we decline to hold

that the filing of those documents was sufficient to postpone the decision’s effectiveness, absent any

statute, rule, or declaration by the Commission to that effect. See 30 Tex. Admin. Code § 50.139(d).

               We hold that, when a decision is issued by the executive director under chapter 213

of the Commission’s rules, section 5.351 of the water code requires a petition for judicial review

contesting that decision to be filed within 30 days of the date of issuance of that decision, unless

the Commission expressly stays the effective date of the decision. See Tex. Water Code Ann.

§ 5.351(b); 30 Tex. Admin. Code § 50.139(d); see also Public Util. Comm’n v. Gulf States

Utils. Co., 809 S.W.2d 201, 207 (Tex. 1991) (applying deference to agency’s interpretation of its

own rules).


       Judicial review of denial of motion to overturn

               Next, the City argues that, even if the executive director’s decision was effective

on the date it was issued, the City complied with water code section 5.351’s 30-day requirement

because the decision for which the City seeks judicial review is the Commission’s overruling the

City’s motion to overturn.

               According to the City, because it is undisputed that the City filed suit within 30 days

of the Commission’s denial of the motion to overturn, “this Court unquestionably has jurisdiction

                                                  8
over the City’s appeal of the Commission’s denial of the City’s motion for reconsideration under

Texas Water Code § 5.351.” However, the Texas Supreme Court has stated that administrative

orders are generally final and appealable if they impose an obligation, deny a right, or fix some

legal relationship as a consummation of the administrative process. See Texas-New Mexico Power

Co. v. Texas Indus. Energy Consumers, 806 S.W.2d 230, 232 (Tex. 1991) (quoting Sierra Club

v. United States Nuclear Regulatory Comm’n, 862 F.2d 222, 225 (9th Cir. 1988)).

               The Commission’s denial of the motions to overturn does not establish any rights or

obligations. The substance of the Commission’s denial, in its entirety, is as follows:


       THEREFORE, BE IT DECIDED BY THE TEXAS COMMISSION ON
       ENVIRONMENTAL QUALITY that: The Motion to Overturn filed by
       Anne Ashmun; the Motion to Overturn filed by Neighbors Organized to Protect
       the Environment and John Sikoski; and the Motion for Reconsideration filed by the
       City of Austin have been DENIED.


The Commission’s decision constitutes merely a refusal to overturn or otherwise modify the decision

that did establish KBDJ’s rights and obligations. The executive director’s decision consists of

nine pages, imposes nine special conditions and eighteen standard conditions, and provides that

KBDJ’s WPAP is approved subject to those stated conditions. It is the conditions set forth in the

executive director’s decision that the Commission will enforce and with which the Commission

will expect KBDJ to comply. See Star Houston, Inc. v. Texas Dep’t of Transp., 957 S.W.2d 102,

105 (Tex. App.—Austin 1997, pet. denied) (final agency order is one with which agency expects

compliance). The denial of the motions to overturn does not fix the legal relationship between

the Commission and KBDJ, but rather, at most, declines to alter the manner in which the



                                                 9
executive director’s decision fixed the legal relationship. See Rea v. State, No. 03-08-00491-CV,

2009 Tex. App. LEXIS 5463, at *9 (Tex. App.—Austin July 16, 2009, no pet. h.) (“In determining

whether an agency action is final, we do not look at the action separately, but to the agency

decision-making process as a whole.”); Kinney County Groundwater Conservation Dist.

v. Boulware, 238 S.W.3d 452, 459-61 (Tex. App.—San Antonio 2007, no pet.) (agency’s decision

on permit final and appealable; administrative remedies exhausted by filing motions for rehearing).

               The Commission’s denial of the City’s motion to overturn is not a final and

appealable order and, therefore, not a “ruling, order, decision, or other act of the commission”

subject to judicial review under section 5.351 of the water code. See Tex. Water Code Ann.

§ 5.351(a). Whether the City’s petition for judicial review was filed within 30 days of such denial

is irrelevant to whether the petition was timely in accordance with water code section 5.351. See id.

§ 5.351(b).


Conclusion

               The executive director’s decision approving KBDJ’s water pollution abatement plan

was signed and issued on October 28, 2005. The Commission did not order that the effectiveness

of that decision be delayed. The City filed suit challenging the executive director’s decision on

February 23, 2006. The City’s lawsuit was not filed within 30 days of the executive director’s

signing and issuance of the decision and, therefore, failed to comply with water code section 5.351.




                                                 10
See id. Consequently, the district court was without jurisdiction over the City’s suit. See Tex. Gov’t

Code Ann. § 311.034 (West Supp. 2009) (“Statutory prerequisites to a suit . . . are jurisdictional

requirements in all suits against a governmental entity.”). We vacate the district court’s judgment

against the City and dismiss the City’s suit for want of jurisdiction.




                                               __________________________________________

                                               G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Vacated and Dismissed for Want of Jurisdiction

Filed: December 31, 2009




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