                                                                                             ACCEPTED
                                                                                          13-14-00725-cv
                                                                         THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    7/23/2015 9:14:46 AM
                                                                                  CECILE FOY GSANGER
                                                                                                  CLERK


                           No. 13-14-00725-CV
                ______________________________________________________
                                                                   FILED IN
                                                            13th COURT OF APPEALS
                          Court of Appeals             CORPUS CHRISTI/EDINBURG, TEXAS

                 for the Thirteenth Judicial District
                                               7/23/2015 9:14:46 AM
                                                CECILE FOY GSANGER
                 Corpus Christi – Edinburg, Texas Clerk
                ______________________________________________________

                      Dos Republicas Coal Partnership,
                                Appellant,
                                         v.
            David Saucedo as Floodplain Administrator and
       County Judge of the Maverick County Commissioners Court
            and the Maverick County Commissioners Court,
                              Appellees.
                ______________________________________________________

                         REPLY BRIEF OF APPELLANT
                ______________________________________________________

                 On appeal from the 293rd Judicial District Court
                            Maverick County, Texas
                       Cause Number 14-03-29340-MCV
                ______________________________________________________

Leonard Dougal                              Bill Cobb
State Bar No. 06031400                      State Bar No. 00796372
Mallory Beck                                Matthew Ploeger
State Bar No. 24073899                      State Bar No. 24032838
JACKSON WALKER L.L.P.                       Jenny L. Smith
100 Congress                                State Bar No. 24079357
Suite 1100                                  COBB & COUNSEL
Austin, Texas 78701                         401 Congress Avenue
ldougal@jw.com                              Suite 1540
T: (512) 236-2233                           Austin, Texas 78701
F: (512) 391-2112                           bill@cobbxcounsel.com
                                            (512) 693-7570
                                            (512) 687-3432 – Facsimile

           Attorneys for Appellant Dos Republicas Coal Partnership
                                             TABLE OF CONTENTS

Table of Contents ................................................................................................... ii
Index of Authorities .............................................................................................. iv
Introduction .............................................................................................................1
Argument .................................................................................................................3
I.       Appellees’ over-expansive view of the Ordinance’s purpose
         does not alter the conditions for granting a permit. ................................3
         A.       Appellees’ interpretation of the Ordinance, which confers
                  standardless discretion on the Floodplain Administrator,
                  would render the Ordinance unconstitutionally vague. ..............4
         B.       The Ordinance’s statement of purpose does not authorize
                  the Floodplain Administrator to regulate surface coal
                  mining or water quality, which are both regulated
                  exclusively by state agencies. ...........................................................9
                  1.        Surface coal mining is regulated exclusively by the
                            Railroad Commission. .............................................................9
                  2.        The Ordinance does not and cannot regulate flood
                            water quality or contaminants. ............................................12
II.      As a matter of law, DRCP’s Permit Application satisfied the
         conditions to receive a permit. ..................................................................17
         A.       Appellees’ assertions with respect to Padilla’s testimony
                  are based on misconceptions about what a permit
                  application must show.....................................................................20
                  1.        DRCP was not required to eliminate pre-existing
                            dangers from flooding. ..........................................................21
                  2.        The Ordinance does not address water quality or
                            “contaminants.” ......................................................................25
         B.       Appellees waived factor (d), the compatibility of the
                  proposed use with existing and anticipated development. .......26
III.     The duty to grant the permit is not discretionary where, as here,
         the Ordinance’s conditions are met. ........................................................29

                                                            ii
IV.      The Floodplain Administrator’s failure to provide any written
         explanation of his decision evidences an abuse of discretion and
         is arbitrary and capricious. ........................................................................31
         A.        The requirement of a written explanation is inherent in
                   the concept of judicial review. ........................................................31
         B.        There is no evidence of any [climate] changed
                   circumstances that justify the disparate treatment of the
                   1998 and 2013 permit applications.................................................33
V.       Appellees’ novel contention that the Floodplain
         Administrator’s due process violation was “remedied” by
         instituting an action for an extraordinary writ is without merit. ........35
Prayer ......................................................................................................................36
Certificate of Compliance ....................................................................................38
Certificate of Service .............................................................................................38




                                                             iii
                                            INDEX OF AUTHORITIES

CASES
Bradley v. State ex rel. White, 990 S.W.2d 245 (Tex. 1999) ...................... 6, 29, 30

City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (Tex. App.—
  Dallas 1992, writ denied) .................................................................................34

City of Dallas v. TCI W. End, Inc., No. 13-0795, 2015 WL 2147986 (Tex. May 8,
  2015) ......................................................................................................................5

City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (Tex. App.—Austin 1993,
  writ denied) ........................................................................................................32

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)...........................................18

City of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597
  (Tex. App.—San Antonio 2013, pet. denied) ................................... 11, 12, 17

City of W. Lake Hills v. Westwood Legal Def. Fund, 598 S.W.2d 681 (Tex. Civ.
  App.—Waco 1980, no writ) .............................................................................14

Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.—Tyler 1976, writ
  ref’d n.r.e.) ............................................................................................................7

Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489
  (Tex. 1993).............................................................................................. 11, 12, 17

Hager v. Romines, 913 S.W.2d 733 (Tex. App.—Fort Worth 1995, no writ) ...18

Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507 (Tex. App.—Corpus
   Christi-Edinburg Jan. 22, 2009, no pet.) .........................................................27

Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014)...................................6

Lee v. GST Transp. Sys., LP, 334 S.W.3d 16 (Tex. App.—Dallas 2008, pet.
  denied) ..................................................................................................................6
                                                             iv
Lindig v. City of Johnson City, No. 03-11-00660-CV, 2012 WL 5834855 (Tex.
  App.—Austin Nov. 14, 2012, no pet.) ..............................................................7

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006)....................................18

Mack v. Moore, 669 S.W.2d 415 (Tex. App.—Houston [1st Dist.] 1984, no
 writ) .....................................................................................................................18

Methodist Hosps. of Dallas v. Mid–Century Ins. Co. of Tex., 259 S.W.3d 358
 (Tex. App.—Dallas 2008, no pet.) .....................................................................6

Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013).......................................................27

Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (Tex. App.—Amarillo
  2014, no pet.) ..................................................................................................7, 29

Perry v. S.N., 973 S.W.2d 301 (Tex. 1998) ...........................................................33

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559 (Tex. App.—Austin 2007,
  pet. denied).........................................................................................................10

Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (Tex. 2013)
  ................................................................................................................. 10, 12, 17

Starr County v. Starr Industrial Services, Inc., 584 S.W.2d 352 (Tex. App.—
  Austin 1979, writ ref’d n.r.e.).................................................................... 27, 28

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924 (Tex.
  1977) ........................................................................................................... 6, 8, 29

Texas Health Facilities Commission v. Charter Medical-Dallas, Inc., 665 S.W.2d
  446 (Tex. 1984)....................................................................................................32

Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013 WL 3771302
 (Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.)...............................34


                                                             v
STATUTES
TEX. NAT. RES. CODE § 134.002 ...............................................................................9

TEX. NAT. RES. CODE § 134.020 .............................................................................10

TEX. WATER CODE § 16.312 ....................................................................................16

TEX. WATER CODE § 16.3145 ..................................................................................16

TEX. WATER CODE § 26.011 ....................................................................................13

TEX. WATER CODE § 26.023 ....................................................................................13

TEX. WATER CODE § 26.171 ....................................................................................14

TEX. WATER CODE § 26.172 ....................................................................................14

TEX. WATER CODE § 26.176 ....................................................................................14

TEX. WATER CODE § 26.180 ....................................................................................14

OTHER AUTHORITIES
National Flood Insurance Program: Program Description, Fed. Emer.
 Mgmt. Agency, at 5 (Aug. 1, 2002), available at
 http://www.fema.gov/media-library-data/20130726-1447-20490-
 2156/nfipdescrip_1_.pdf. .................................................................................23

Texas Nonpoint Source Management Program, TCEQ/TSSWCB joint
  publication SFR-68/04, at 93 (2005)................................................................22

RULES
TEX. R. APP. P. 33.1 .................................................................................................26

TEX. R. APP. P. 43.2 .................................................................................................36

TEX. R. EVID. 801 .....................................................................................................34

                                                          vi
TO THE HONORABLE COURT OF APPEALS:
      Appellant Dos Republicas Coal Partnership (“DRCP”) respectfully

submits this Reply Brief.

                               INTRODUCTION

      To understand why the Floodplain Administrator’s denial of DRCP’s

permit application was improper, the Court need only review the testimony

of the Floodplain Administrator. Judge Saucedo testified, repeatedly, that

he would never grant a permit allowing mining in the floodplain, and there

was nothing DRCP could do (or demonstrate) that would change his mind.

Burdened with this testimony, Appellees contort the purpose and structure

of the Ordinance to justify his foreordained rejection.

      Appellees’ arguments rest on the mistaken assertion that the

Floodplain Administrator is not constrained by the Ordinance’s ten

mandatory factors for evaluating permit applications.         Although the

Floodplain Administrator testified that the permit application must be

measured against the ten enumerated factors, Appellees only now assert that

the Ordinance’s general statement of purpose, separate and apart from the

operative provisions of the Ordinance, gives the Floodplain Administrator

broad power to reject otherwise satisfactory permit applications based on his

                                      1
judgment as to the “best interests of the county.” But the Ordinance’s

general statement of purpose simply does not (and cannot) give the

Floodplain Administrator a general police power beyond the limits of the

operative provisions of the Ordinance itself. This is especially true where,

as here, he does so with no explanation or evidence to support his diktat.

Appellees’ interpretation of the Ordinance would give the Floodplain

Administrator boundless, limitless, and standardless discretion to veto

projects that he disfavors, untethered from the express conditions for issuing

permits that are imposed by the Ordinance. Indeed, Appellees’ erroneous

interpretation would render the Ordinance unconstitutionally vague and

subject to arbitrary and capricious enforcement.       It therefore must be

rejected.

      Further, Appellees’ interpretation and corresponding arrogation of

power would render the Ordinance preempted by state law and regulations,

which exclusively regulate both surface coal mining and the discharge of

water from mining operations. It is undisputed that DRCP has received all

relevant permits from all relevant state agencies for its surface coal mining

operations, but Appellees wish to second-guess and override the authority



                                      2
of these regulatory agencies because they disagree with the expert decisions

those agencies have made.

     Appellees’ attempts to shoehorn his assumption of veto power into the

ten enumerated factors themselves fairs no better. Appellees labor under a

misconception of what the Ordinance requires of applicants. Contrary to

Appellees’ assumptions, permit applicants are not required to demonstrate

that the proposed use will prevent flooding. At most, the application should

demonstrate that the proposed use will not excessively increase the dangers

of flooding. The Ordinance recognizes that flooding will occur regardless of

the measures taken by the government or by private landowners. Here, the

uncontroverted evidence is that Appellant’s mining activities will not

increase the dangers of flooding, but in fact, that they will actually reduce

the risks. Thus, Appellant’s permit application demonstrates prevention

efforts far beyond what the Ordinance requires.

                                ARGUMENT

I.   Appellees’ over-expansive view of the Ordinance’s purpose does not
     alter the conditions for granting a permit.

     Appellees’ brief is based on the faulty premise that the Floodplain

Administrator may alter the conditions for granting or denying a permit


                                     3
based on his over-expansive understanding of the purpose of the Ordinance.

Appellees rely upon article 4, section C(2) of the Ordinance, which provides:

“Approval or denial of a Development Permit by the Floodplain

Administrator shall be based on all of the provisions of this ordinance and

the following relevant factors.” 1 RR, Exhibit 5, Article 4, Section C(2) [Tab

3]. Appellees’ assertion that the admonition to consider “all provisions”

gives the Floodplain Administrator unfettered, standardless discretion is

beyond farcical: this     interpretation would render the Ordinance

unconstitutionally vague and invalid. Further, this interpretation (and the

Floodplain Administrator’s application of it here) conflicts with the

exclusive authority granted to the RRC and TCEQ by state law and, thus, is

preempted.

     A.      Appellees’ interpretation of the Ordinance, which confers
             standardless discretion on the Floodplain Administrator,
             would render the Ordinance unconstitutionally vague.

     The model ordinance adopted by Maverick County provides ten

specific factors against which a permit application must be judged. It is

through an even-handed application of these standards that the policy goals

behind the Ordinance are achieved. That is, the policy goals are mediated

by and through the ten expressly enumerated factors. But the policy goals
                                      4
themselves do not create an additional, ill-defined, omnibus factor that the

Floodplain Administrator may consider, which would make the express

factors immaterial and superfluous. City of Dallas v. TCI W. End, Inc., No. 13-

0795, 2015 WL 2147986, at *2 (Tex. May 8, 2015) (“We must avoid adopting

an interpretation that “renders any part of the statute meaningless.’”)

(quoting Crosstex Energy Servs, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex.

2014)). If Appellees were correct, then there would be no need for any statute

or ordinance to provide requirements and factors; the statute or ordinance

could simply state some general policy goals and administrators could then

decide how best to accomplish those goals. But that, of course, is not how

the rule of law works.

      Appellees’ assertion is truly remarkable.        They maintain that an

administrator may ignore the operative standards enumerated in the

ordinance in favor of their own interpretation of the ordinance’s “purpose”

untethered to the actual requirements and factors mandated in the

ordinance. To the contrary, the Ordinance’s purpose is mediated through

its operative provisions; it does not add to them. And “[e]ven if we liberally

construe a statute to achieve its purposes, we may not enlarge or alter the

plain meaning of its language.” Lee v. GST Transp. Sys., LP, 334 S.W.3d 16,
                                       5
20 (Tex. App.—Dallas 2008, pet. denied); Methodist Hosps. of Dallas v. Mid–

Century Ins. Co. of Tex., 259 S.W.3d 358, 360-61 (Tex. App.—Dallas 2008, no

pet.). Nor will a court “ignore the words’ common meanings to achieve a

purpose or object that is ambiguous at best.” Jaster v. Comet II Constr., Inc.,

438 S.W.3d 556, 569 (Tex. 2014).

      By asserting that the Floodplain Administrator may rely on the general

statement of purpose of the Ordinance to deny a permit, Appellees are

asserting that the Floodplain Administrator’s discretion is not limited to the

standards set forth in the operative provisions of the Ordinance, but, rather,

on unspecified and unknowable factors of the Floodplain Administrator’s

choosing.    As the Texas Supreme Court has explained, this sort of

standardless discretion “leav[es] a situation ripe for ‘resolution on an ad hoc

and subjective basis, with the attendant dangers of arbitrary and

discriminatory application.’” Bradley v. State ex rel. White, 990 S.W.2d 245,

253 (Tex. 1999) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972));

Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554 S.W.2d 924, 928 (Tex.

1977) (“A vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on ad hoc and subjective basis,

with the attended [sic] dangers of arbitrary and discriminatory
                                       6
applications.” (quoting Grayned, 408 U.S. at 109); Pak-a-Sak, Inc. v. City of

Perryton, 451 S.W.3d 133, 137 (Tex. App.—Amarillo 2014, no pet.) (“That is,

[an ordinance] may not be so vague and standardless as to leave a governing

body free to decide, without any legally fixed guidelines, what is prohibited

in each particular case.”); Lindig v. City of Johnson City, No. 03-11-00660-CV,

2012 WL 5834855, at *5 (Tex. App.—Austin Nov. 14, 2012, no pet.) (mem. op.)

(“[T]he seemingly boundless discretion vested in the Building Official to

interpret and apply the term [‘substantial work’] invites arbitrary and

discriminatory application.”); Coffee City v. Thompson, 535 S.W.2d 758, 763

(Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (“An ordinance leaving the

question of issuing or denying building permits to the arbitrary discretion

or determination of the city secretary without any rule or standard to follow

is invalid.”).

      Here, the Floodplain Administrator repeatedly testified there was

nothing DRCP could do to satisfy him and convince him to grant a permit.

1 RR, Exhibit 9 at 28:12-14, 29:21-25, 39:10-14. He testified unequivocally that

he would never approve its application for mining operations in the

floodplain regardless of what the permit application established. He further

testified that he based this position on his personal experience and his
                                       7
determination as to what was in the best interests of the county. But the

Ordinance does not empower him to ignore the standards expressly

enumerated in the operative provisions of the Ordinance.

      In sum, the statement of purpose does not give the Floodplain

Administrator license to override the applicable language of those operative

provisions or the enabling statute. It cannot add to the requirements for

obtaining a permit. Otherwise, the operative provisions of the Ordinance

are meaningless because the statement of purpose gives the Floodplain

Administrator the power to deny or grant permits without respect to the

express, enumerated factors. The purpose of the Ordinance is served by the

express factors mandated in the Ordinance; the statement of purpose does

not give rise to supernumerary and superordinate power to deny permits

the Floodplain Administrator deems not in the county’s best interests. As

the Texas Supreme Court has explained, “[w]e adhere to the settled principle

that statutory delegations of power may not be accomplished by language

so broad and vague that persons ‘of common intelligence must necessarily

guess at its meaning and differ as to its application.’” Texas Antiquities

Comm. v. Dallas Cnty. Cmty. Coll. Dist., 554 S.W.2d 924, 928 (Tex. 1977)

(quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)).
                                       8
     B.    The Ordinance’s statement of purpose does not authorize the
           Floodplain Administrator to regulate surface coal mining or
           water quality, which are both regulated exclusively by state
           agencies.

     Even if Appellees’ arrogation of a general police power could be

countenanced, their interpretation and application of the Ordinance would

render it preempted by state statutes and regulations of surface coal mining

and water quality. Here, the Floodplain Administrator’s purported bases

for denying the permit are preempted by state statutes and regulations.

           1.    Surface coal mining is regulated exclusively by the
                 Railroad Commission.

     The Floodplain Administrator testified that he would never approve a

permit for mining operations in the floodplain based on his “personal

experiences” and determination that mining in the floodplain is not in the

“best interests of the county.” But the Texas Natural Resources Code grants

the Railroad Commission exclusive jurisdiction to regulate the operation

and location of surface coal mines. TEX. NAT. RES. CODE § 134.002(5) (“[T]his

state wishes to assume exclusive jurisdiction over the regulation of surface

coal mining and reclamation operations in the state under the federal Act.”);

R.R. Comm’n of Texas v. Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin



                                     9
2007, pet. denied). 1 Indeed, the code contains a procedure by which the RRC

may designate an area, including a floodplain, as not suitable for surface coal

mining operations. TEX. NAT. RES. CODE § 134.020(b)(4) (“On petition under

Section 134.017, the commission may designate a surface area unsuitable for

certain types of surface coal mining operations if those operations will . . .

affect natural hazard land, including areas subject to frequent flooding and

areas of unstable geology, in which the operations could substantially

endanger life and property.”). Consequently, the decision of whether a

surface coal mining operation should be prohibited in the floodplain is

clearly within the RRC’s exclusive jurisdiction, and the Floodplain

Administrator’s attempt to usurp this authority is a clear abuse of discretion.

See Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676, 678-79

(Tex. 2013) (ordinance may not override state permit); Dallas Merchant’s &


       1       “The natural resources code specifies that the Commission has been
granted exclusive jurisdiction over surface coal mining and reclamation activities, has
been charged with enforcing the relevant portions of the code, and has been given the
authority to issue rules pertaining to mining and reclamation activities that are consistent
with the code. See TEX. NAT. RES. CODE ANN. §§ 134.011 (Commission given broad
powers, including power to adopt rules, issue and revoke permits, conduct hearings,
issue orders requiring miners to take certain actions, and order cessation of mining
activities), 134.012(a)(1) (Commission has exclusive jurisdiction), 134.013 (West 2001)
(Commission required to adopt rules relating to surface coal mining and reclamation),
134.161-.181 (West 2001) (enforcement powers of Commission).” R.R. Comm’n of Texas v.
Coppock, 215 S.W.3d 559, 570 (Tex. App.—Austin 2007, pet. denied).

                                            10
Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex. 1993); City

of San Antonio v. Greater San Antonio Builders Ass’n, 419 S.W.3d 597, 601 (Tex.

App.—San Antonio 2013, pet. denied) (“An ordinance that attempts to

regulate a subject matter preempted by a state statute is unenforceable to the

extent it conflicts with a state statute.”).

      Nor does the Floodplain Administrator have the power to enforce RRC

regulations or second-guess the RRC’s determinations. Appellees appear to

want to disavow any suggestion that the Floodplain Administrator

considered mining regulations in denying the permit. Resp. at 27-28. Yet

this is exactly opposite of what they told the trial court below, where

Appellees argue at length that the RRC should not have issued a permit to

DRCP. 2 CR 857-66; see also Br. at 60-62. Indeed, Appellees argued that “[t]he

County Judge was doing his job in protecting this community from the

Railroad Commission.” 2 CR 879-80. But any concerns regarding purported

dangers from mining activities were addressed and satisfied during the

permitting process at the RRC, where Appellant was an active participant,

and provided testimony. Re: The Application of Dos Republicas Coal Partnership

for Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit

No. 42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C, Testimony of Judge
                                        11
David Saucedo, 10 Tr. 38-107, (Mar. 23, 2012).              The Floodplain

Administrator’s disagreement with the RRC’s conclusions is not a legitimate

reason to deny the permit. Neither the Ordinance nor the enabling statute

give the Floodplain Administrator the authority to override the RRC. See

Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas Merchant’s, 852

S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601.         Moreover,

Appellees’ second-guessing of the RRC’s approval consists entirely of

supposition and assumptions about what might happen in a flood. 2 CR

856-67. Nowhere do Appellees cite any actual evidence to support this

speculation, nor could they. The only evidence presented to the Floodplain

Administrator or the trial court came from Paul Padilla, a licensed engineer

and hydrology expert and the only expert to testify or offer evidence in this

case. As discussed further below, Mr. Padilla testified that DRCP’s mining

plan will not detrimentally affect flood water dangers or downstream

properties. See Part II, infra.

            2.     The Ordinance does not and cannot regulate flood water
                   quality or contaminants.

      Appellees’ assertion that the presence of the enabling legislation for

the Ordinance within the Water Code constitutes a delegation of the power


                                     12
to regulate water quality to the County is meritless. Resp. at 24. The Water

Code is quite clear that “[t]he commission [TCEQ] has the sole and exclusive

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise

specifically provided, the commission shall administer the provisions of this

chapter and shall establish the level of quality to be maintained in, and shall

control the quality of, the water in this state as provided by this chapter.”).

Further, the enabling legislation does not address water quality or pollution.

Rather, commensurate with its purpose of promoting the availability of

federal flood insurance (more on this below), it is found in Subchapter I

(“Flood Insurance”) of Chapter 16 of Subtitle C (“Water Development”).

      In contrast, water quality regulation is found in Subtitle D, Chapter 26,

which states clearly that “The commission [TCEQ] has the sole and exclusive

authority to set water quality standards for all water in the state.” TEX.

WATER CODE § 26.023; TEX. WATER CODE § 26.011 (“Except as otherwise

specifically provided, the commission shall administer the provisions of this

chapter and shall establish the level of quality to be maintained in, and shall

control the quality of, the water in this state as provided by this chapter.”).

Notably, subchapter E of chapter 26 describes local governments’ functions
                                      13
related to water quality, none of which gives a county or Floodplain

Administrator the authority to regulate water quality or otherwise impede a

use that has been approved by the TCEQ.            Rather, for example, local

governments are authorized to inspect public water (§ 26.171), make

recommendations to the TCEQ (§ 26.172), establish rules related to disposal

systems owned or operated by the local government (§ 26.176), and for some

cities to establish monitoring and abatement programs, which must be

approved by the TCEQ, for pollution not traceable to a specific source

(§ 26.180). TEX. WATER CODE §§ 26.171-.180; see also, e.g., City of W. Lake Hills

v. Westwood Legal Def. Fund, 598 S.W.2d 681, 686 (Tex. Civ. App.—Waco 1980,

no writ) (explaining that the functions and services listed in section 26.177

“are in the nature of ‘information gathering’”). As the court explained in

City of West Lake Hills, “[a]lthough the Legislature recognized the importance

of cooperative efforts between state and local governmental bodies, the state

is assigned responsibility for promulgating rules and regulations to control

pollution problems. . . . . The legislative scheme simply does not contemplate

independent regulatory action by a city.” City of W. Lake Hills, 598 S.W.2d at

686.   Appellees can point to nothing that grants Maverick County the

authority exercised by the Floodplain Administrator here.
                                       14
      Indeed, the Ordinance itself provides no basis for Appellees’ claimed

authority to regulate water quality or pollutants. Notably, the statement of

purpose, on which Appellees rely so heavily, says nothing about flood water

quality or contaminants. Notably, the Ordinance’s findings of fact make

clear that the danger that the Ordinance is intended to address is flood water

height and velocity, not water quality or contaminants. 1 RR, Exhibit 5, Article

1, Section B(2) [Tab 3] (“These flood losses are created by the cumulative

effect of obstructions in floodplains which cause an increase in flood heights

and velocities, and by the occupancy of flood hazards areas by uses

vulnerable to floods and hazardous to other lands because they are

inadequately elevated, floodproofed or otherwise protected from flood

damage.”).    Not surprisingly, then, the Ordinance’s definitions do not

include “contaminant,” “pollutant,” or any other term related to water

quality. In fact, no provision of the Ordinance relates to water quality or

even refers to (much less establishes) any water quality standard against

which a permit application must be judged. Nor is there anything that

suggests that Floodplain Administrators have the necessary expertise to

regulate water quality.



                                      15
      Further, the purpose of the enabling statute that authorizes local

governments to adopt these ordinances does not relate to water quality.

Rather, the purpose is to allow property owners to obtain flood insurance

under a federal program. TEX. WATER CODE § 16.312 (“The purpose of this

subchapter is to evidence a positive interest in securing flood insurance

coverage under this federal program and to so procure for those citizens of

Texas desiring to participate and in promoting the public interest by

providing appropriate protection against the perils of flood losses and in

encouraging sound land use by minimizing exposure of property to flood

losses.”); id. § 16.3145 (“The governing body of each city and county shall

adopt ordinances or orders, as appropriate, necessary for the city or county

to be eligible to participate in the National Flood Insurance Program.”). It

was not intended to establish a separate regulatory regime for water quality.

Nor was it intended to grant counties free license to prevent land uses they

deem unwanted.

      Further, Appellees’ assertion that recognizing that the TCEQ has

exclusive authority to regulate water quality would nullify the Ordinance is

spurious. Resp. at 24-25. The Ordinance, properly interpreted, is limited to

consideration of the height and velocity of flood waters, not water quality. It
                                      16
is only under Appellees’ erroneous interpretation of the Ordinance, which

would give the Floodplain Administrator the authority to regulate water

quality in addition the enumerated authority to regulate flood water height

and velocity, that would create a conflict with the TCEQ’s exclusive

authority. Under the proper interpretation, the Ordinance and the TCEQ

regulate different things.

      Appellees’ interpretation of the Ordinance clearly exceeds the

authority granted to the County in the enabling legislation and, in any case,

is preempted by the Water Code’s delegation of that authority exclusively to

the TCEQ.    See Southern Crushed Concrete, 398 S.W.3d at 678-79; Dallas

Merchant's, 852 S.W.2d at 490–91; City of San Antonio, 419 S.W.3d at 601. The

Floodplain Administrator’s exercise of this non-existent authority is a clear

abuse of discretion.

II.   As a matter of law, DRCP’s Permit Application satisfied the
      conditions to receive a permit.

      Appellees assert that the Floodplain Administrator and trial court

were not required to accept the uncontroverted testimony of Paul Padilla, a

licensed engineer and hydrology expert and the only expert to testify or offer

evidence in this case. But there is no reasonable basis for rejecting or


                                     17
discounting Padilla’s testimony. Thus, as the only expert evidence on the

issue, which is one that necessitates expert opinion, it is conclusive on the

fact questions at issue here. In City of Keller v. Wilson, 168 S.W.3d 802 (Tex.

2005), the Texas Supreme Court recognized that flood water management

involves scientific and technical issues that require expert opinion evidence.

Id. at 829; see also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006)

(“Expert testimony is required when an issue involves matters beyond

jurors’ common understanding.”).              In such situations, an expert’s

uncontroverted testimony is conclusive. City of Keller, 168 S.W.3d at 820;

Hager v. Romines, 913 S.W.2d 733, 735 (Tex. App.—Fort Worth 1995, no writ)

(“Further, if expert testimony is required on an issue, and that expert

testimony is uncontroverted, the testimony is considered conclusively

established.”); Mack v. Moore, 669 S.W.2d 415, 419 (Tex. App.—Houston [1st

Dist.] 1984, no writ) (same).

      The Floodplain Administrator’s vague allusions to “personal

experience” simply are not relevant or competent evidence in evaluating

whether the Permit Application satisfies the Ordinance.2               Further, the



      2      Appellees insist that the Floodplain Administrator’s deposition testimony
that “he relied on his personal experiences with flooding in Maverick County” is
                                         18
Floodplain Administrator’s “personal experience with and knowledge of

significant flooding in the area” (Resp. at 5) likewise does not address the

relevant considerations of the Ordinance. It is undisputed that there has

been and will be flooding that takes place in the floodplain. The Ordinance

expressly recognizes this, yet, as discussed below, it does not prohibit all

development in the floodplain. Nor does the Floodplain Administrator’s

“experience” related to other sedimentation ponds that have overflowed

have any bearing on the permit application.                     As Padilla testified,

sedimentation ponds are designed to overflow. As the Texas Supreme Court

has explained, issues related to floodwater management require expert

evidence, and Padilla’s uncontroverted expert evidence is more than

sufficient to satisfy each of the conditions set forth in the Ordinance.




competent evidence. Resp. at 29. But it is not evidence relevant to any actual factor
contained in the Ordinance. Further, as discussed above, the Texas Supreme Court has
held that issues related to flood water management require expert evidence. The
Floodplain Administrator’s vague references to unsubstantiated personal experiences
and what he’s “seen happen in the past” simply do not qualify. 1 RR, Exhibit 9, at 49:18-
23 (Q. “[W]as there any other evidence that you considered when denying the permit?
A. . . . one of the major factors to me is – is what I’ve actually seen in that community,
what I’ve seen happen in the past with prior flooding.”); 1 RR, Exhibit 9 at 46:14-22 (when
asked what evidence he had to support his denial, the Floodplain Administrator merely
responded with “what I’ve seen in the past”).
                                            19
      Despite the fact that the only factors the Floodplain Administrator

purported to contest in the trial court were factors (a)-(c), Appellees now, for

the first time, assert that the Floodplain Administrator also based his

rejection of the Permit Application on factor (d). As discussed below,

Appellees’ late attempt to assert factor (d) should be rejected as untimely

and waived. In any case, it is another futile effort by Appellees’ to shoehorn

the Floodplain Administrator’s erroneous consideration of irrelevant issues

into permissible factors.

      A.     Appellees’ assertions with respect to Padilla’s testimony are
             based on misconceptions about what a permit application
             must show.

      With respect to factors (a)-(c), Appellees raise essentially the same two

arguments.      First, Appellees assert that Padilla’s testimony must be

disregarded because he failed to consider the effect of a hypothetical back-

to-back storm as well as a purported rain event in June of 2013. Second,

Appellees assert that Padilla’s testimony must be disregarded because he

did not consider possible contaminants. Appellees’ arguments misconstrue

the Ordinance’s requirements and the record in this case.3



      3    As noted above, Appellees’ lengthy argument in the trial court that the RRC
and TCEQ should not have approved DRCP’s mining plan because of its purported
                                         20
              1.     DRCP was not required to eliminate pre-existing dangers
                     from flooding.

       Initially, there is zero evidence in the record that Maverick County

received 17 inches of rain in 10 hours in June 2013. Br. at 36. Appellees’

frequent references to such an event are improper and must be disregarded.

       But more fundamentally, Appellees’ argument assumes that DRCP

was required to prove that the proposed use would eliminate all potential

damage from any possible flood event. This is simply preposterous. The

Ordinance is not intended to mitigate all dangers from flooding, as

recognized within the Ordinance, itself. Rather, the Ordinance requires that

the proposed use not exacerbate the dangers from flooding by increasing the

height, velocity, and debris in the flood water.                Texas Nonpoint Source

Management Program, TCEQ/TSSWCB joint publication SFR-68/04, at 93

(2005) (“To participate in the NFIP, a community must adopt and enforce a




effects on downstream residents is based entirely on speculation and assumptions, not
any actual evidence. See, e.g., 2 CR 857-66. Throughout, Appellees rail against supposed
problems with the RRC’s and TCEQ’s determinations based on nothing more than the
fact that flooding happens in the floodplain and it makes them uncomfortable. Id. To be
absolutely clear, there is no evidence in the record before this Court or in the proceedings
before the RRC and TCEQ that downstream residents are at any greater risk due to
flooding under DRCP’s proposed mining plan. Appellees’ fears and baseless speculation
about purported of dangers to downstream residents simply have no evidentiary
support.

                                            21
floodplain management ordinance which prevents new development from

increasing the flood threat and protect new and existing buildings from

anticipated flood events.” (emphasis added)). Section D of the Ordinance

provides that the Ordinance may restrict or prohibit uses that “cause

excessive increases in flood heights or velocities” and to control

development that “may increase flood damage.” 1 RR, Exhibit 5, Article 1,

Section D(1), D(4) [Tab 3] (emphasis added). 4

      Moreover, the Ordinance fully recognizes that “[t]he degree of flood

protection required by this ordinance is considered reasonable for

regulatory purposes and is based on scientific and engineering

considerations. On rare occasions greater floods can and will occur and

flood heights may be increased by man-made or natural causes.” 1 RR,

Exhibit 5, Article 3, Section G [Tab 3]. Further, FEMA has noted that “[t]he

1-percent-annual-chance flood,” the standard adopted for all NFIP-

complaint ordinances, “was chosen on the basis that it provides a higher



      4       Although Article 1, Section D(1) of the Ordinance also recites that the
ordinance restricts or prohibits uses “that are dangerous to health, safety or property in
times of flood,” this description is nonetheless under the umbrella of “reducing flood
losses” within the ordinance, recognizing that the ordinance is focused on reducing
property loss in times of flood, and reducing—rather than eliminating—threats from
flooding in the floodplain.

                                           22
level of protection while not imposing overly stringent requirements or the

burden of excessive costs on property owners.” National Flood Insurance

Program: Program Description, Fed. Emer. Mgmt. Agency, at 5 (Aug. 1,

2002), available at http://www.fema.gov/media-library-data/20130726-

1447-20490-2156/nfipdescrip_1_.pdf. The Ordinance is not intended to, nor

could it, protect or prevent against all possible flooding events.         And

applicants like DRCP are not required to show that their proposed uses will

eliminate the dangers from floods.

      In any case, it is undisputed that, as Padilla testified, DRCP’s proposal

actually decreases the pre-existing risks from flooding events. Under DRCP’s

mining plan, there is a decreased risk of damage caused by flooding or

erosion due to the proposed sedimentation ponds. 1 RR, Exhibit 3, at 5 [Tab

5]; 1 RR, Exhibit 1 at ¶ 13; 1 RR 40:14-41:21. Specifically, DRCP’s Permit

Application and Mr. Padilla’s unrebutted expert testimony establish that

DRCP’s proposed mining plan will have a zero net effect on flooding in the

Elm Creek watershed outside of the mining project area. 1 RR 53:21-23.

Moreover, DRCP’s mining plan decreases the likelihood that materials will

be swept downstream because the use of sedimentation ponds contains the

flow within the channel. 1 RR, Exhibit 3, at 5 [Tab 5]; 1 RR, Exhibit 1 at ¶ 15.
                                      23
Indeed, the sediment load leaving the mine area will be lower if DRCP

conducts its proposed mining operation with sedimentation ponds than if

DRCP does nothing at all in the floodplain. 1 RR 54:1-2. Although the

Floodplain Administrator may doubt the efficacy of such ponds because,

based on dubious and inapposite “personal experience,” they may overflow,

the ponds are, in fact, designed to overflow.                1 RR 56:9-14.        The

uncontroverted expert testimony establishes that DRCP’s mining plan and

its use of sedimentation ponds would not constitute a new danger for those

living downstream; to the contrary, they would decrease the pre-existing

risks from inevitable flooding.

      The Floodplain Administrator testified that he denied the permit

based, in part, on his personal experiences observing the devastation from

flooding. See, e.g., 1 RR, Exhibit 9, at 49:18-23, 46:14-22. That is simply not

the issue. As the Ordinance recognizes, there will be flooding if DRCP’s

proposed use is permitted; and there will be flooding if it is prohibited.5 The

issue is the effect, if any, of the proposed use on the velocity and height of




      5      Even Judge Saucedo recognizes that flooding occurs, regardless of DRCP’s
proposed mining plan. 1 RR, Exhibit 9 at 49:23-25 (discussing flooding in the past, and
recognizing that DRCP is “not responsible for the flooding”).

                                          24
flood waters. The Floodplain Administrator’s personal observations of past

flooding events simply does not address this issue.

            2.    The Ordinance does not address water quality or
                  “contaminants.”

      Similarly, Appellees erroneously believe that the Ordinance requires

consideration of potential contaminants. As discussed above, nothing in the

Ordinance addresses contaminants. See Part I.B.2, supra. Water quality is

regulated exclusively by the TCEQ, which has already approved DRCP’s

proposed mining operations. The Ordinance provides no basis for the

Floodplain Administrator to deny a permit based on hypothetical fears

regarding potential “contaminants.”

      Moreover, although Padilla agreed that sulfur “could be” considered

a contaminant, he did not testify that the sulfur was dangerous or that the

levels involved would pose any health risk. Indeed, he also testified that dirt

is a “contaminant.” 1 RR 75:5-8. And while he testified that he would not

want to drink the water coming out of the sedimentation ponds, who would?

Neither DRCP nor any other landowner is required to ensure that the flood

water coming off of its property is potable. People do not drink flood water,

and there is no evidence that dangerous levels of any contaminant would be


                                      25
present in flood waters leaving DRCP’s property or that there would be any

danger to drinking water. Indeed, the Floodplain Administrator merely

raised the “possibility” of contamination, but could not identify any

particular contaminants or contamination that might occur under DRCP’s

mining plan. 1 RR, Exhibit 9 at 34:10-23.

      B.    Appellees waived factor (d), the compatibility of the proposed
            use with existing and anticipated development.

      Appellees have waived any argument that factor (d) was a basis for

the Floodplain Administrator’s rejection of DRCP’s permit application. In

his deposition, the Floodplain Administrator testified that his denial was

based on factors (a)-(c). 1 RR, Exhibit 9 at 46 (“Q: The floodplain permit was

denied because of the factors in 2(a), (b) and (c)? A: Yes, sir.”). Nor did

Appellees contest factor (d) in the trial court. 2 CR 874-79. Appellees’

attempt to assert factor (d) for the first time in this Court should be rejected

as untimely and waived. TEX. R. APP. P. 33.1(a)(1); Nall v. Plunkett, 404

S.W.3d 552, 555-56 (Tex. 2013) (holding issues not raised and briefed in lower

courts are waived); Jackson v. Neal, No. 13-07-00164-CV, 2009 WL 140507, at

*4 & n.3 (Tex. App.—Corpus Christi-Edinburg Jan. 22, 2009, no pet.) (mem.

op.) (“This argument, however, was not raised in the trial court and is,


                                      26
therefore, waived.”). Try as they might, Appellees’ latest attempt fails to

transform the Floodplain Administrator’s erroneous consideration of

irrelevant factors (such as neighborhood sentiment), into permissible

categories.

      In any case, Appellees’ arguments regarding factor (d) are meritless.

Appellees assert that factor (d) requires the consideration of the

compatibility of the proposed use with uses on neighboring properties and

neighborhood opposition. Appellees once again conveniently forget that

this Ordinance is about floodplain management, not the approval of a coal

mine. Nor is it a zoning ordinance. Neighborhood opposition is simply not

something that this narrow floodplain-management Ordinance is intended

to—or does in fact—cover. As in Starr County v. Starr Industrial Services, Inc.,

584 S.W.2d 352, 356 (Tex. App.—Austin 1979, writ ref’d n.r.e.), “[n]owhere

in the [Ordinance] is local opposition mentioned for consideration as a

standard to govern the [Floodplain Administrator’s] decision,” and, thus,

the Floodplain Administrator’s consideration of such local opposition, and

the “best interests of the County,” was arbitrary and capricious, and




                                      27
constitutes an abuse of discretion. 6 Id. at 356. Nothing in the Ordinance or

any other law gives county residents located miles away from DRCP’s

property the right to veto DRCP’s approved use of its land. Those decisions

are left to the state RRC and TCEQ, both of which have approved the

proposed mining operation. 1 RR, Exhibit 7; 1 RR, Exhibit 8. Indeed, the

residents who are opposed have already fully litigated their opposition to

the RRC’s approval of the mine and its location. 1 RR, Exhibit 8 at ¶ 9

(identifying those persons and entities who obtained party status in RRC

hearing); see generally Re: The Application of Dos Republicas Coal Partnership for

Renewal/Revision/Expansion of Surface Coal Mining And Reclamation Permit No.

42A, Eagle Pass Mine, Docket No. C5-0003-SC-42-C (RRC, Surface Mining and

Reclamation Division 2012). Factor (d) simply does not give the Floodplain

Administrator the authority to override the outcome of the RRC’s decision

and the subsequent litigation.

      Moreover, factor (c) already addresses the effect of the proposed use

on flood damage to other properties. 1 RR, Exhibit 5, Article 4, Section



      6        In any case, the unrebutted and uncontradicted evidence in this case
establishes that the proposed use would reduce the effects of flooding events on
downstream properties and, thus, would be, under any reasonable meaning of the words,
“in the best interests of the county.”

                                         28
C(2)(c) [Tab 3]; 1 RR 42-43. Appellees can cite nothing that suggests that

factor (d) encompasses consideration of the compatibility of all land uses

within the county.7         It certainly cannot transform a narrow ordinance

addressing flood damage prevention into a general, county-wide

development scheme. But even if it did, “neighborhood sentiment” still

would not fall within this factor unless the meaning of “compatibility” is so

broad as to be essentially standardless and, thus, unconstitutionally vague.

Bradley, 990 S.W.2d at 253; Texas Antiquities Comm., 554 S.W.2d at 928; Pak-a-

Sak, 451 S.W.3d at 137. Neither this factor, nor indeed anything else in the

Ordinance, permits the Floodplain Administrator to deny a permit because

he deems that a mine is inconsistent with a use miles away, or allows the

Floodplain Administrator to consider his estimation of popular opposition

to the proposed use of the property.

III.   The duty to grant the permit is not discretionary where, as here, the
       Ordinance’s conditions are met.

       Appellees’ assertion that the Ordinance is discretionary by definition

is simply another manifestation of its mistaken assertion that the Ordinance



       7     In fact, Padilla testified that after the seven-year life of the mining plan, the
land will be restored to its original condition and “then can be used in whatever
comprehensive plan the county wishes.” 1 RR 43-44.

                                             29
invests the Floodplain Administrator with authority to evaluate permit

applications without regard to the ten factors enumerated in the Ordinance.

See Part I, supra. Indeed, this interpretation would give the Floodplain

Administrator such standardless discretion that it would create “a situation

ripe for ‘resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.’” Bradley, 990 S.W.2d

at 253 (quoting Grayned, 408 U.S. at 109)).

       Properly interpreted, however, the Ordinance does not grant the

Floodplain Administrator free reign to reject otherwise compliant

applications based on his personal feelings, desires, opinions, or grandiose

notions of the best interests of the county. Once the requirements and factors

enumerated in the Ordinance are satisfied, it is the Floodplain

Administrator’s duty under the Ordinance to grant the permit. 8 Because the

unrebutted and uncontradicted evidence in this case is that the proposed use



       8       Appellees’ assertion that the Floodplain Administrator had to consider all
21 pages of the Ordinance is frivolous. See Resp. at 6, 9, 22. Of the 21 pages, 3 are
certification pages, 7 are definitions, 2 relate to variance procedures, 3 relate to building
standards, and 4 include general provisions, findings and statement of purpose. 1 RR,
Exhibit 5 [Tab 3]. Only 2.5 pages relate to the duties of the Floodplain Administrator and
the requirements and factors that the Floodplain Administrator must determine have
been met in order to grant the permit. Id. None of the provisions on the remaining 18.5
pages relate to the permitting procedure. Id.

                                             30
would not increase, but actually would reduce the dangers posed by flooding

events, the Floodplain Administrator had a ministerial duty to grant the

permit. See Part II, supra; Br. at 20-39.

      Further, Appellees concede that the Floodplain Administrator

considered factors outside of the ten factors mandated in the Ordinance.

Resp. at 11. Because, under the proper interpretation of the Ordinance, the

requirements and factors set forth in article 4, section C of the Ordinance are

the exclusive standards by which a permit application must be judged, the

Floodplain Administrator’s consideration of other factors is, per se, an abuse

of discretion. Br. at 49-64.

IV.   The Floodplain Administrator’s failure to provide any written
      explanation of his decision evidences an abuse of discretion and is
      arbitrary and capricious.

      A.    The requirement of a written explanation is inherent in the
            concept of judicial review.

      Appellees’ argument that principles of law requiring a written

explanation of an administrator’s decision apply only to “state agencies” is

specious. As explained in DRCP’s opening brief, the power of Texas courts

to judicially review the Floodplain Administrator’s decision necessarily

“implies a power to require the [Floodplain Administrator] to supply any


                                        31
reasons or explanations necessary for the reviewing court to understand the

[Floodplain Administrator’s] final order” so that there may be “meaningful

judicial review” rather than a “charade of the real thing.” City of El Paso v.

El Paso Elec. Co., 851 S.W.2d 896, 900 (Tex. App.—Austin 1993, writ denied);

see generally Br. at 42-44. Although some of the cases cited may involve state

agencies, the principles apply with equal force to counties, and the

Floodplain Administrator.

      Similarly, Appellees’ citation to Texas Health Facilities Commission v.

Charter Medical-Dallas, Inc., 665 S.W.2d 446 (Tex. 1984), is inapposite.

Although that case does stand for the proposition that the scope of judicial

review of administrative decisions “is governed by the enabling statute in

the area under adjudication,” id. at 449, that “scope” refers to the standard

of review the court should apply to the agency’s decision. Id. It does not

refer to the requirement that the administrator provide a written

explanation. Indeed, it is hard to apply any standard of review (except de

novo) where the administrator fails to provide any written explanation for

his decision.

      Again, Appellees act as if the Floodplain Administrator has unfettered

discretion to reject permit applications for unspecified reasons that only he
                                     32
knows. This is the very essence of the kind of arbitrary and capricious

administrative actions that Texas courts reject.              The Floodplain

Administrator’s two-sentence order provides no basis on which to uphold

his naked exercise of standardless discretion. This Court should reject his

attempt to insulate his arbitrary and capricious actions by hiding his reasons

for denying the Permit Application.

      B.    There is no evidence of any [climate] changed circumstances
            that justify the disparate treatment of the 1998 and 2013 permit
            applications.

      Showing true desperation, Appellees attempt to tie the Floodplain

Administrator’s denial of DRCP’s permit application to controversial

climate change theories. Resp. at 30. Appellees cite a New York Times

article, which was published (and deals with events) occurring well after the

trial – and thus was not, of course, part of the trial record and, therefore not

properly before this Court. See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998)

(“We may not consider factual assertions that appear solely in the appellate

briefs and not before the trial court.”).

      Moreover, because Appellees cite to the article in an attempt to prove

the truth of the matters discussed therein, the article is rank hearsay. TEX. R.

EVID. 801(d); Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV, 2013
                                       33
WL 3771302, at *6 (Tex. App.—Houston [1st Dist.] July 16, 2013, no pet.)

(mem. op.) (“[N]ewspaper articles that are offered to prove the truth of what

the article is reporting are inadmissible hearsay.”); City of Austin v. Houston

Lighting & Power Co., 844 S.W.2d 773, 791 (Tex. App.—Dallas 1992, writ

denied) (“Generally, Texas courts consider newspaper articles inadmissible

hearsay.”).

      Further, nothing in the article suggests that there was “a change in

relevant circumstances between 1998 and 2013.” Resp. at 30. Indeed, even

if the events described in the article could possibly suggest a change in

circumstances, they occurred in 2015 and, thus, could not have formed any

part of the Floodplain Administrator’s consideration of the Permit

Application.   Appellees’ misleading assertion to the contrary must be

rejected. Further, events in other parts of Texas do not provide any relevant

evidence about Maverick County or the Permit Application at issue here. A

vague prediction that there may be more “extreme weather events” does not

change the analysis in this case. There is simply no evidence in or outside

the record of any relevant changes that would justify in the disparate

treatment of the two Permit Applications. This is just the latest permutation



                                      34
of Appellees’ revisionist justifications of the Floodplain Administrator’s

denial of the Permit Application.

V.    Appellees’ novel contention that the Floodplain Administrator’s due
      process violation was “remedied” by instituting an action for an
      extraordinary writ is without merit.

      Appellees assert that DRCP’s “argument assumes DRCP has a

property interest in a permit it has requested but not yet been granted.”

Resp. at 35. But DRCP’s argument assumes no such thing. It is undisputed

that DRCP has a property interest in the mining area itself, as well as having

a property interest in its state-issued permits from the RRC and TCEQ,

which authorize DRCP to conduct mining operations on its property. Br. at

64-65. Further, Appellees assert that DRCP has not “contended that Judge

Saucedo’s actions stripped it of its ability to use its land in accordance with

its existing permits.” Resp. at 35. But this is precisely what DRCP has argued.

The Floodplain Administrator’s actions have deprived DRCP of its property

interests in its state permits and the use of its property in accord with those

permits. Appellees’ assertions to the contrary is wishful or mistaken.

      Moreover, Appellees’ assertion that DRCP received due process

because it had to pursue an extraordinary writ in order to impel the

Floodplain Administrator to perform his duties is absurd. Not surprisingly,
                                      35
Appellees cite no authority for the incredible proposition that a due process

violation is “remedied” through a mandamus proceeding.

                                   PRAYER

      Pursuant to TEX. R. APP. P. 43.2, Dos Republicas Coal Partnership

respectfully requests that this Court reverse the trial court’s final judgment

and render judgment in its favor and issue a writ of mandamus ordering the

Floodplain Administrator and the Maverick County Commissioners Court

to issue a floodplain development permit to DRCP. In the alternative, Dos

Republicas Coal Partnership requests that the final judgment be reversed

and the case remanded for the trial court to determine any remaining issues

of fact, or for resolution of any other issues identified by the Court. Finally,

DRCP requests any and all other relief to which it is may be entitled.




                                      36
Respectfully Submitted,

/s/ Bill Cobb
Bill Cobb
State Bar No. 00796372
Matthew Ploeger
State Bar No. 24032838
Jenny L. Smith
State Bar No. 24079357
COBB & COUNSEL
401 Congress Avenue, Suite 1540
Austin, Texas 78701
bill@cobbxcounsel.com
(512) 693-7570
(512) 687-3432 – Facsimile



Leonard Dougal
State Bar No. 06031400
Mallory Beck
State Bar No. 24073899
JACKSON WALKER L.L.P.
100 Congress, Suite 1100
Austin, Texas 78701
E: ldougal@jw.com
T: (512) 236-2233
F: (512) 391-2112


Attorneys for Appellant
Dos Republicas Coal Partnership




 37
                        CERTIFICATE OF COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), and
relying on the word count function in the word processing software used to
produce this document, I hereby certify that the total word count in this
document is 7,488.

                                                 /s/ Bill Cobb
                                                 Bill Cobb


                          CERTIFICATE OF SERVICE

      I hereby certify that on this 23rd day of July, 2015, a true and correct
copy of the foregoing document has been served upon the following
attorneys by electronic service and email.

Alfonso Nevarez C.                        Rolando Jasso
Nevarez Law Group, PC                     State Bar No. 10491500
780 Rio Grande Street                     Claudio Heredia
Eagle Pass, Texas 78852                   State Bar No. 09505300
anc@nevarezlawgroup.com                   Knickerbocker, Heredia, Jasso, &
mvw@nevarezlawgroup.com                   Stewart P.C.
                                          468 East Main Street
                                          Eagle Pass, Texas 78852-4598
                                          rmjasso@khjslaw.com
                                          chlaw750@yahoo.com
Law Office of Beth Watkins
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666—phone
(210) 225-2300—fax
Beth.Watkins@WatkinsAppeals.com

                                                 /s/ Bill Cobb
                                                 Bill Cobb


                                     38
                            APPENDIX

Tab 1   Order Denying Dos Republicas Coal Partnership’s Amended
        Petition for Writ of Mandamus (5 CR 2940)

Tab 2   Findings of Fact and Conclusions of Law (5 CR 3207-12)

Tab 3   Maverick County Flood Damage Prevention Ordinance (1 RR,
        Exhibit 5)

Tab 4   April 3, 2014 Letter Denying DRCP’s Floodplain Development
        Permit Application (1 RR, Exhibit 4)

Tab 5   Supplemental Floodplain Analysis, Executive Summary (1 RR,
        Exhibit 3, at 2-6)
TAB 1
'•




                                  NO.l4-03.-29340=MCVI

     DOS REPUBLICA$ COAL PARTNERSHIP, §                      IN THE DIS1RICT COURT
     Plaintiff                        §
                                      §
     vs.                              §
                                      §
     DAVID SAUCEDO as FLOODPLAIN      §                    MAVERICK COUNTY TEXAS
     ADMINISTRATOR and COUNTY JUDGE §
     OF THE MAVERICK COUNTY           §
     CO:MMISIONERS COURT and THE      §
     MAVERICK COUNTY COMMISIONERS §
     COURT                            §
     Defendant                        §                      293td JUDICIAL DIS1RICT




                       ORDER DENYING PLAINTIFF
       DOS REPUBLICAS COAL PARTNERSHIP'S AMENDED PETITION FOR
                         WRIT OF MANDAMUS



           On October 9, 2014, came to be heard Plaintiff Dos Republicas Coal

     Pamership (DCCP) Amended Petition for Writ of Mandamus. The Court, having

     reviewed the Plaintiff's Writ, and the responses, pleadings, briefs, evidence and

     testimony from both Plaintiff and Defendants therein, and having considered

                                                       A~E18dt( ~JRiibn fob Writ of
     same, is of the opinion that Plaintiff DCCP's
                                                                 1
                                                        J,\J_,.O,;.~__JYCLOCKa_M
     Mandamus should be DENIED.
                                                               Del 'l 0 2014


     for Writ of Mandamus is hereby DENIED.

           Signed this   \   G¥r'aay   of October, 2014.


                                                                      - 935
                                                             --~~~~~--~
                                                             PRE
     2940
TAB 2
.'
                                                     CAUSE NO. 14-03-29340-MCV

          DOS REPUBLICA$ COAL PARTNERSIDP, §                                                IN THE DISTRICT COURT
                                 --
                                           §
               Plaintiff,                  §
                                           §
          v.                               §
                                           §
          DAVID SAUCEDO as FLOODPLAIN      §                                           MAVERICK COUNTY, TEXAS
          ADMINISTRATOR and COUNTY JUDGE §
          OFTHEMAVlliUCKCOUNTY             §
          COMWSIONERS COURT and THE        §
          MAVERICK COUNTY COMMISIONERS §
          COURT,                           §
                                           §
               Defendants.                 §                                                293rd JUDICIAL DISTRICT

                             FINDINGS OF FACT AND CONCLUSIONS OF LAW

                   The Plaintiff's Amended Motion for Writ of Mandamus in the above-

          captioned cause came on for hearing before the Court on October 9, 2014. All
                                                                                     \
          parties were present through their attorneys. After considering the pleadings, the

          evidence, and the arguments of counsel, the Court entered it's Order Denying
                                                tl
                                            ~
                                            I
          Plaintiff's Amended ~otion for Writ of Mandamus on October 10, 2014. On

          October 27, 2014,           Plair\~iff       requested that this Court enter findings of fact and

          conclusions of law, which are hereby submitted as follows:

                                                        FINDINGS OF FACT

     1.        On August 15, 1996, the Maverick County Commissioners Court approved
               and adopted the Maverick County Flood Damage Prevention Ordinance
               ("Ordinance"). The Ordinance was adopted pursuant to the National Flood
               Insurance Program and was established to minimize flood losses in Maverick
               County, Texas. 1

          1 Plaintiff Exhibit 5. Maverick County Flood Damage Prevention Ordinance, pg. 1

                                                                       1                                              3201
     3207
2.        Through the Ordinance, the Maverick County Commissioners Court
          appointed the County Judge as the Floodplain Administrator with the
          authority to review, and either approve or deny all applications for
          development permits required by adoption of the Ordinance. 2

3.        As per Article 4, Section C(1), an Application for a Development Permit must
          be presented to the Floodplain Administrator and must include the
          information contained in Subsections (a)-(e).3

4.        As per Article 4, Section C(2), approval or denial of a Development Permit by
          the Floodplain Administrator shall be based on all of the provisions of the
          Ordinance and the relevant factors contained in Subsections (a)-G) (the
          "factors").4

5.         On November 3, 2011, Dos Republicas Coal Partnership ("DRCP") filed an
           Application for Floodplain Permit with Maverick County, as required by the
           Ordinance. DRCP filed a Supplemental Application on September 4, 2013,
           after a new FEMA floodplain map was adopted.

6.         After reviewing DRCP' s Application and taking into consideration all of the
           provisions of the Ordinance, the Floodplain Administrator decided that
           DRCP satisfied the requirements contained in Article 4, Section C(1)
           contained in the Ordinance, but had concerns with factors (a)-(c) contained in
           Article 4, Section C(2). 5

7.         Factors (a)-(c) cited by Floodplain Administrator are:

                        (a) The danger to life and property due to flooding or erosion damage;
                        (b) The susceptibility of the proposed facility and its contents to flood
                            damage and the effect of such damage on the individual owner;
                            and
                        (c) The danger that materials may be swept onto other lands to the
                            injury of others.6

8.        As a result of DRCP's failure to address the concerns the Floodplain

      2 Id. at pg. 12

      3 Id. at pg. 13
      4 Id. at pgs. 13-14

      5 Plaintiff Exhibit 9, Excerpts from Transcript dated October 2, 3014, Oral and Video Deposition of the Corporate
      Represet~tative of tl1e Mwerick County Commissioners Court (David Raul Saucedo), pg. 69lines 7-22

      6 Id. at pgs. 70-71lines 24-10
                                                                     2
                                                                                                                          3202
     3208
         Administrator had with factors (a)-(c), the Floodplain Administrator denied
         DRCP's Development Permit 7 . DRCP was notified of the Floodplain
         Administrators decision in a letter dated April 3, 2014.8 Thereafter, DRCP
         filed this cause on March 25, 2014.

9.        At the October 9, 2014 hearing, DRCP called its expert, civil engineer Paul
          Padilla.    He had prepared the Supplemental Floodplain Analysis to the
          original 2011 Floodplain Application, which was submitted to the Floodplain
          Administrator as a Supplemental Application.         Paul Padilla testified
          regarding the requirements for a floodplain permit, and whether DRCP met
          all the requirements9 .

10.       The Court finds that DRCP's expert Paul Padilla failed to demonstrate
          through his testimony that all ten factors contained in Article 4, Section C (2)
          (a)-G) of the Ordinance were satisfied, so as to support the granting of the
          Permit. Specifically, Mr. Padilla failed to address factors (a)-(c) which the
          Floodplain Administrator referenced as his reason for denying DRCP's
          Development Permit. 10

11.       The Court finds that DRCP's expert, Paul Padilla, failed to demonstrate
          through his testimony that in his analysis he considered the specific rainfall
          events Maverick County is and has been susceptible to which have caused
          significant flooding and damage in Maverick County.'~ 1

12.        The Court finds that DRCP' s expert, Paul Padilla, failed to demonstrate
           through his testimony that in his analysis he considered the contaminants
           and/or sediment contained in the sedimentation ponds that will overflow in
           the event of a flood event in Maverick County.12

13.        The Permit Procedures are outlined in Article 4, Section C of the Ordinance.
           There is no requirement in the Ordinance that the Floodplain Administrator's
           written denial of the Permit specifically address the requirements and/or
           factors which he considered as the basis for his decision. 13

14.        The Court finds that the "best interest of [Maverick] county" was not a basis

      7 Deposition of David Raul Saucedo, pg. 69 lines 7-14
      8 Plaintiff Exhibit 4, Defendant's letter of denial, April3, 2014
      9 Exce.r pts from Transcript dated October 9, 2014, Hearing on Abatement and Writ of Mandamus, p.31
      10 Id. pg. 69 lines 9-21
      11 Id. at lines 18-21
      12 Id. at lines 9-17

      13 Floodplain Prevention Ordinance, pgs.13-14
                                                                     3                                      320 3
3209
           for Defendants' decision standing alone, but was merely referenced when
           considering the Ordinance was designed to minimize flood losses in flood
           hazard areas of Maverick County, Texas.

15.        The Court finds that the Floodplain Administrator's personal experiences
           were not a basis for Defendants' decision standing alone, but knowledge of
           the specific rainfall events in Maverick County which have caused significant
           flood damage in Maverick County was a mere reference when considering
           factors (a)-(c) contained in the Ordinance.

16.        The Court finds that the Texas Coal Mining Regulations was not a basis for
           Defendants' decision standing alone, but was a mere reference when
           considering factors (a)-(c) contained in the Ordinance.

17.        The Court finds that the floodwater quality was not a basis for Defendants'
           decision standing alone, but was a mere reference when considering the
           factors contained in the Ordinance; specifically, the danger to life and
           property due to flooding or erosion damage, and the danger that materials
           may be swept onto other lands to the injury of others.

18.        The Court finds that the Floodplain Administrator denied DRCP's permit
           based on the concern that if the permit was approved, the occurrence of a
           flooding event (such as the flooding events experienced by Maverick County
           in the past) will carry sediment and/or contaminants downstream into the
           homes of Maverick County citizens and into Elm Creek.

19.        The Court finds that the Floodplain Administrator based his decision to deny
           DRCP's Development Permit on all of the provisions of the Ordinance and
           the relevant factors, as he was authorized to do by Article 4 of the
           Ordinance. 14

20.        The Court finds that the Floodplain Administrator did not abuse his
           discretion when rendering his decision to deny DRCP' s Development Permit.

                                                 CONCLUSIONS OF LAW
      1.        A district court may issue a writ of mandamus to rectify an abuse of
                discretion, when a Commissioners Court acts illegally, unreasonably, or
                arbitrarily.



      14 Deposition of David .Raul Saucedo, pg. 69 lines 7-14
                                                                4                          320 4
3210
 2.    A Commissioners Court abuses its discretion-necessitating mandamus
       relief-when it either: (A) fails to perform a purely ministerial act, or
       (B) fails to consider a factor the Legislature directs it to consider, or
           considers an irrelevant factor.

 3.    Defendants considered all of the provisions of the Ordinance as well as
       the relevant factors as per Article 4, Section C(2) of the Ordinance, and
       denial of DRCP' s Development Permit did not constitute an abuse of
       discretion.

 4.    Defendants were not required to provide the reasons for denying DRCP' s
       Development Permit Application and Supplemental Application at the
       time of issuing the denial, and the failure to do so, did not constitute an
       abuse of discretion.

 5.    Defendants did not consider any irrelevant factors when denying DRCP' s
       Development Permit Application and Supplemental Application and the
       denial of same did not constitute an abuse of discretion.

  6.   Defendants' reference to the best interest of the county, floodwater
       quality, surface coal mining regulations, and personal experience was not
       a basis for Defendants' decision standing alone and that reference did not
       render Defendants' denial of DRCP' s Development Permit Application
       and Supplemental Application arbitrary and capricious.

  7.   The Ordinance does not deprive DRCP of the use of its property because
       Defendants' denial of DRCP's Development Permit Application does not
       deprive it of all economically viable uses of its property, therefore due
       process is not an issue, and the denial was not arbitrary or capricious or an
       abuse of discretion.

  8.   The Floodplain Administrator was required, under Article 4, Section C(2)
       to approve or deny DRCP's Development Permit Application and
       Supplemental Application based on all of the provisions of the Ordinance,
       and the relevant factors listed in (a)-G).

  9.   The Floodplain Administrator was not required, and did not have a
       ministerial duty to grant DRCP' s Development Permit Application and
       Supplemental Application if the Floodplain Administrator found that the
       application did not meet the provisions of the Ordinance and relevant
       factors.

                                         5

3211                                                                                   3205
  10.   DRCP's Development Permit Application and Supplemental Application
        did not satisfy the requirements of the Ordinance and the act of approving
        or denying it was not a ministerial act therefore, the Floodplain
        Administrator's denial of the permit was not illegal, arbitrary or
        capricious or an abuse of discretion.




                                                             F\LED
                                                       A+±03o'CLOCK£_M
                                                           DEC 5 2014




                                         6                                           3206
3212
TAB 3
         RECEIVED IN
   13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
   12/22/2014 3:27:24 PM
     DORIAN E. RAMIREZ
            Clerk
TAB 4
         RECEIVED IN
   13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
   12/22/2014 3:27:24 PM
     DORIAN E. RAMIREZ
            Clerk
TAB 5
Authorities
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

                                                                proceedings violated Texas Rule of Civil Evidence 605. 1 We
                    990 S.W.2d 245                              agree. Therefore, we reverse the court of appeals' judgment
                 Supreme Court of Texas.                        for the State and render judgment for Bradley.

               Scott BRADLEY, Petitioner,
                         v.
                                                                                    I. BACKGROUND
          The STATE of Texas on the Relation
             of Dale WHITE, Respondent.                         In May 1994, Scott Bradley was elected Mayor of Westlake, a
                                                                general-law municipality. He was reelected in May 1996. On
              No. 97–1135. | Argued Sept.                       April 14, 1997, Howard Dudley, a Westlake alderman, filed
          28, 1998. | Decided April 8, 1999.                    a complaint against Bradley alleging official misconduct and
                                                                incompetency. Specifically, Dudley alleged that Bradley (1)
State brought quo warranto action when mayor purported
                                                                canceled a special town meeting called by alderman Carroll
to remain in office after removal trial conducted by board
                                                                Huntress and removed the public notice of the meeting; (2)
of aldermen. The 342nd District Court, Tarrant County,
                                                                directed the Town Secretary to exclude from the meeting
Bob McGrath, J., entered summary judgment for mayor,
                                                                agenda an item Huntress requested and to remove a part of
and State appealed. The Court of Appeals, 956 S.W.2d
                                                                the proposed minutes from another town meeting; and (3)
725, reversed and rendered. Mayor filed petition for review.
                                                                caused the Town Engineer to prepare a false boundary map of
The Supreme Court, Baker, J., held that testimony of
                                                                Westlake, and then presented the falsified map to the Board
aldermen in proceeding in which board of aldermen were
                                                                of Aldermen as part of an ordinance.
adjudicating whether to remove mayor from office violated
rule prohibiting judge from acting as witness in trial over
                                                                On April 28, 1997, the Westlake Board of Aldermen sat as
which judge is presiding, and thus, board of aldermen did not
                                                                a court to hear the charges against Bradley and to decide
lawfully remove mayor from office.
                                                                whether there was sufficient cause for his removal from
                                                                the Mayor's office. During the trial, Dudley and another
Reversed and rendered.
                                                                alderman, Al Oien, testified against Bradley. Dudley testified
                                                                that he had provided Bradley with a request for and notice
Abbott, J., filed a concurring opinion.
                                                                of the meeting Bradley allegedly canceled. Oien testified
                                                                that when the Board passed the ordinance at issue, no map
Attorneys and Law Firms                                         was attached to it. At the end of the trial, four of the five
                                                                aldermen, including Dudley and Oien, found Bradley guilty
 *246 Bob E. Shannon, Joe R. Greenhill, Scott K. Field,         of the charges. On motion made by Oien and seconded by
Austin, E. Eldridge Goins, Jr., James W. Morris, Jr., Jeffrey   Dudley, the Board voted to remove Bradley as Mayor of
S. Wigder, Dallas, for Petitioner.                              Westlake. Days later, the aldermen appointed Dale White as
                                                                Mayor. Bradley refused to recognize the aldermen's judgment
Ann Diamond, Tim Curry, Marshall M. Searcy, Jr., Dee J.         on the grounds that the removal procedure violated applicable
Kelly, William N. Warren, Michael Schattman, Barbara P.         procedural rules, substantive state law, and his federal and
Neely, Fort Worth, for Respondent.                              state constitutional rights.

Opinion
                                                                On May 20, 1997, the State of Texas, on relation of Dale
Justice BAKER delivered the opinion of the Court, in which      White, filed a quo warranto action seeking a declaration
Chief Justice PHILLIPS, Justice HECHT, Justice ENOCH,           that White, not Bradley, was the lawful Mayor. The State
Justice OWEN, Justice HANKINSON, Justice O'NEILL and            alleged that: (1) the aldermen had lawfully removed Bradley
Justice GONZALES join.                                          from the Mayor's office under Texas Local Government Code
                                                                section 21.002(f); (2) the aldermen had lawfully appointed
This is a quo warranto case. Scott Bradley asserts that the     Dale White as Mayor; (3) White had taken the oath of office
Board of Aldermen of the Town of Westlake, Texas did            on May 2, 1997, and therefore, lawfully held office as Mayor;
not lawfully remove him as Mayor under section 21.002(f)        and (4) Bradley had unlawfully usurped and intruded into the
of the Texas Local Government Code because the removal          Mayor's office since his lawful removal. The State filed a


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

motion for summary *247 judgment asserting as grounds the           898, 900 (Tex.1988). The reviewing court should render
allegations in its quo warranto petition.                           the judgment that the trial court should have rendered. See
                                                                    Agan, 940 S.W.2d at 81; Members Mut. Ins. Co. v. Hermann
Bradley filed a cross-motion for summary judgment. In his           Hosp., 664 S.W.2d 325, 328 (Tex.1984). If a party brings
summary judgment motion Bradley alleged the following               the case to this Court and we reverse the court of appeals,
affirmative defenses: (1) Texas Local Government Code               we should render the judgment that the court of appeals
section 21.002 violates the Texas Constitution's separation         should have rendered. See Agan, 940 S.W.2d at 81; Tobin
of powers doctrine; (2) section 21.002 is unconstitutionally        v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400–01 (1958).
vague; (3) Bradley's removal trial violated his federal and         When a trial court's order granting summary judgment does
state procedural due process rights; (4) a section 21.002           not specify the grounds relied upon, the reviewing court
removal trial is penal in nature, and Bradley was denied his        must affirm summary judgment if any of the summary
state constitutional right to a jury trial; (5) the aldermen were   judgment grounds are meritorious. See Star–Telegram, Inc. v.
disqualified under the Texas Constitution to sit as judges          Doe, 915 S.W.2d 471, 473 (Tex.1995). We do not consider
in the removal trial because they had a pecuniary interest          constitutional challenges when we can dispose of a case on
in the outcome; (6) the removal trial violated Texas Rules          nonconstitutional grounds. See Transportation Ins. Co. v.
of Civil Evidence 605, 607, and 611b, and Texas Rules of            Moriel, 879 S.W.2d 10, 13 (Tex.1994).
Civil Procedure 18b, 527, 528, 544, and 571; (7) the removal
trial violated the Texas Open Meetings Act; (8) the evidence
at trial did not support Bradley's removal; (9) the removal
                                                                                 B. REMOVAL PROCEDURES
judgment became a nullity when a new board of aldermen
granted Bradley's motion for new trial; and (10) the removal        The Texas Local Government Code governs a mayor's
judgment became a nullity when Bradley filed an appeal bond         removal from office in a general-law municipality. See TEX.
with the new board of aldermen.                                     LOC. GOV'T CODEE § 21.002. A mayor may be removed
                                                                    from office for official misconduct, intentional violation of
The trial court denied the State's motion for summary               a municipal ordinance, habitual drunkenness, incompetency,
judgment and granted Bradley's motion for summary                   or a cause prescribed by a municipal ordinance. See TEX.
judgment without specifying upon which of Bradley's                 LOC. GOV'T CODEE § 21.002(c). When a complaint is
summary judgment grounds it based its judgment. The court           made against the mayor, the complaint must be presented
of appeals held that the State had conclusively proved the          to an alderman of the municipality. See TEX. LOC. GOV'T
elements of its quo warranto action. 956 S.W.2d at 745. The         CODEE § 21.002(f). *248 The alderman shall then file the
court of appeals also held that Bradley had not conclusively        complaint, serve the mayor with a copy, set a date for trial
proved all essential elements of his defense in quo warranto as     of the case, and notify the mayor and the other aldermen
a matter of law nor had he defeated at least one element of the     to appear on that day. See TEX. LOC. GOV'T CODEE
State's quo warranto claim. Accordingly, the court of appeals       § 21.002(f). A majority of the municipality's aldermen
reversed the trial court's judgment and rendered summary            constitutes a court in the mayor's removal trial with one of
judgment for the State.                                             the aldermen presiding over the trial. See TEX. LOC. GOV'T
                                                                    CODEE § 21.002(f). If two-thirds of the members of the
                                                                    court who are present at the trial find the mayor guilty of the
                  II. APPLICABLE LAW                                complaint's charges and find that the charges are sufficient
                                                                    cause for removal from office, the court's presiding officer
                                                                    shall enter a judgment removing the charged officer and
        A. STANDARD OF REVIEW—CROSS                                 declaring the office vacant. See TEX. LOC. GOV'T CODEE
       MOTIONS FOR SUMMARY JUDGMENT                                 § 21.002(h).

 [1]    [2]    [3]    [4] When both sides move for summary
                                                              Section 21.002 removal proceedings are subject to the
judgment and the trial court grants one motion and denies the
                                                              procedural rules governing the justice courts and to
other, the reviewing court should review both sides' summary
                                                              procedural rules governing district and county courts, to
judgment evidence and determine all questions presented.
                                                              the extent these govern justice courts. See TEX. LOC.
See Commissioners Court of Titus County v. Agan, 940
                                                              GOV'T CODEE § 21.002(h); TEX.R. CIV. P. 523 (“All rules
S.W.2d 77, 81 (Tex.1997); Jones v. Strauss, 745 S.W.2d


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

governing the district and county courts shall also govern the    Comments of the Federal Advisory Committee on Proposed
justice courts, insofar as they can.”) In addition, the Texas     Rules indicate that Federal Rule of Evidence 605 purports
Rules of Civil Evidence apply to section 21.002 trials. See       to protect the appearance of impartiality. The Committee
TEX.R. CIV. EVID. 101(b) (“[E]xcept as otherwise provided         describes Federal Rule of Evidence 605 as:
by statute, these rules govern civil proceedings in all Texas
courts other than small-claims courts.”).                                       a broad rule of incompetency, rather
                                                                                than [a rule of] incompetency only
                                                                                as to material matters, leaving the
                                                                                matter to the discretion of the judge,
       C. TEXAS RULE OF CIVIL EVIDENCE 605                                      or recognizing no incompetency. The
                                                                                choice is the result of inability
“The judge presiding at the trial may not testify in that
                                                                                to evolve satisfactory answers to
trial as a witness. No objection need be made in order to
                                                                                questions which arise when the judge
preserve this point.” TEX.R. CIV. EVID. 605. Texas Rule
                                                                                abandons the bench for the witness
of Civil Evidence 605 is identical to its federal counterpart.
                                                                                stand. Who rules on objections? *249
See FED.R.EVID. 605. Not surprisingly, there are few
                                                                                Who compels him to answer? Can
reported federal or state cases involving Rule 605 violations.
                                                                                he rule impartially on the weight and
Most cases that do involve judges testifying at the trial
                                                                                admissibility of his own testimony?
over which they are presiding are decided on due process
                                                                                Can he be impeached or cross-
grounds. See, e.g.,Brown v. Lynaugh, 843 F.2d 849, 851 (5
                                                                                examined effectively? Can he, in a
th
     Cir.1988); Tyler v. Swenson, 427 F.2d 412, 415 (8 th                       jury trial, avoid conferring his seal of
Cir.1970); Terrell v. United States, 6 F.2d 498, 499 (4 th                      approval on one side in the eyes of
Cir.1925); Haynes v. State of Missouri, 937 S.W.2d 199, 202                     the jury? Can he, in a bench trial,
(Mo.1996); Wilson v. Oklahoma Horse Racing Comm'n, 910                          avoid an involvement destructive of
P.2d 1020, 1024 (Okla.1996). These cases hold that a judge                      impartiality?
testifying as a witness violates due process rights by creating
a constitutionally intolerable appearance of partiality. See      FED.R.EVID. 605 advisory committee's note.
Brown, 843 F.2d at 851 (“[I]t is difficult to see how the
neutral role of the court could be more compromised, or more      Indeed, one of the few federal cases to apply Rule 605 held
blurred with the prosecutor's role, than when the judge serves    that it was reversible error for a trial judge's law clerk to testify
as a witness for the state.”); Tyler, 427 F.2d at 416 (“The       about facts favorable to the plaintiff because the danger that
danger ... of subjecting [the judge's] impartiality to doubt      the jury would identify the law clerk with the trial judge was
and of placing the [party against whom the judge testifies]       obvious. See Kennedy v. Great Atl. & Pac. Tea Co., 551 F.2d
at an unfair disadvantage ... is very obvious.”); see also In     593, 598 (5 th Cir.1977). The court held that the “potential
Re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed.           for prejudice” was so great that it rendered inquiry into actual
942 (1955)(disapproving of the “spectacle” of a trial judge       prejudice to the parties “fruitless.” See Kennedy, 551 F.2d at
presenting testimony which he must consider in adjudicating       598.
guilt or innocence).
                                                                   [5] Rule 605 does not only apply to members of the
Rule 605 is similarly concerned with the appearance of            judiciary, but also to those performing judicial functions that
partiality. See Hensarling v. State, 829 S.W.2d 168, 170          conflict with a witness's role. See Gary W. v. Louisiana Dept.
(Tex.Crim.App.1992)(referring to Texas Rule of Criminal           of Health and Human Resources, 861 F.2d 1366, 1368 (5
Evidence 605, which is identical to Texas Rule of Civil           th
                                                                     Cir.) (applying Rule 605 to prohibit deposition of special
Evidence 605 and noting that the Rule's purpose is to             master appointed to ensure compliance with protective order
preserve the judge's posture of impartiality before the parties   in family law case); Central Platte Natural Resources Dist.
and the jury); WRIGHT & GOLD, FEDERAL PRACTICE                    v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847, 864
AND PROCEDURE: EVIDENCE § 6062 (1990)(referring to                (1994) (applying Rule 605 and holding that court properly
Federal Rule of Evidence 605).                                    excluded testimony of doctor who assisted in decision making
                                                                  process in administrative adjudication); but see Williams v.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

State, 11 Ark.App. 11, 665 S.W.2d 299 (1984) (permitting              *250 The concurring opinion asserts that section 21.002
testimony from trial court's bailiff, called as a rebuttal witness   is void for vagueness because the statute does not specify
to impeach a defense witness's credibility).                         which justice court and district court rules apply to removal
                                                                     trials. The concurrence concedes, however, that the language
                                                                     of section 21.002 and Texas Rule of Civil Procedure 523
                                                                     indicate that Texas Rule of Civil Evidence 605 applies to
                       III. ANALYSIS
                                                                     removal trials. The concurrence suggests that, nevertheless,
 [6] Because the trial court did not specify upon which              Rule 605 should not apply because aldermen may be the
ground it rendered summary judgment for Bradley, we can              only people familiar with the facts that form the basis for the
render judgment for Bradley if one of Bradley's summary              complaint against a mayor.
judgment grounds is meritorious. See Star–Telegram, 915
S.W.2d at 473. We first consider Bradley's nonconstitutional         Here, however, there is no indication that Oien and Dudley's
summary judgment grounds. See Moriel, 879 S.W.2d at 13.              testimony was necessary to the removal proceedings. On the
One of Bradley's summary judgment grounds is that he was             contrary, the record reveals that it was not. Bradley himself
not lawfully removed from office as the State's quo warranto         admitted the substance of the first complaint. He testified at
action alleges because Oien and Dudley testified against him         the removal trial that he canceled the meeting Huntress had
while they sat in judgment over his removal trial, violating         called and removed the posted public notice of the meeting. 2
Texas Rule of Civil Evidence 605. The court of appeals               Bradley's concession rendered Dudley's testimony—that he
responded to Bradley's Rule 605 argument by citing case law          had provided Bradley with notice of and a request for the
that holds that aldermen who assert a complaint against a            meeting—unnecessary. The aldermen voted that Bradley was
mayor are not disqualified from judging the mayor's removal          guilty of canceling the meeting and removing notice of the
hearing. See Riggins v. Richards, 97 Tex. 229, 77 S.W. 946,          meeting and that those actions alone were sufficient cause for
949 (1904). The court of appeals then noted that section             removal. Accordingly, Oien's testimony, which dealt solely
21.002 allows all citizens of general-law municipalities,            with the falsified-map charge, was not necessary to the
including aldermen, to file a complaint against a mayor. See         removal proceedings either.
TEX. LOC. GOV'T CODEE § 21.002(f). However, the court
of appeals did not discuss the aldermens' dual roles as judges
and witnesses against Bradley in the removal trial.
                                                                                         IV. CONCLUSION

Although Oien and Dudley are not members of the judiciary,           We conclude that Oien and Dudley, by testifying, violated
they assumed judicial roles in the removal trial, roles              Texas Rule of Civil Evidence 605. Therefore, the Board
which conflicted with their roles as witnesses. Section              of Aldermen did not lawfully remove Bradley as Mayor.
21.002 required the aldermen to sit as a “court” over                Because Bradley conclusively negated an element of the
the removal “trial.” See TEX. LOC. GOV'T CODEE §                     State's quo warranto action—that the aldermen had lawfully
21.002(f), (g), and (h). Oien and Dudley, along with their           removed Bradley under section 21.002—the court of appeals
fellow aldermen, decided whether Bradley had committed the           improperly reversed the trial court's judgment for Bradley.
acts the complaint described and if so, whether these acts           We do not need to consider any of Bradley's other summary
warranted removal.                                                   judgment grounds. Accordingly, we reverse the court of
                                                                     appeals' judgment and render judgment for Bradley on the
Oien and Dudley testified against Bradley about the facts that       State's quo warranto action. We declare that Bradley was the
served as the basis for the complaint and then adjudicated           lawful Mayor of the Town of Westlake when the State filed
whether Bradley was guilty of the complaint's charges. Their         its quo warranto action.
testimony created the appearance of bias that Rule 605 seeks
to prevent and such a potential for prejudice to Bradley that
inquiry into actual prejudice is fruitless. Accord Kennedy, 551
F.2d at 598. Therefore, we need not and do not conduct a harm        Justice ABBOTT filed a concurring opinion.
analysis.
                                                                     Justice ABBOTT, concurring.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

The Court holds that the Westlake Board of Aldermen                 example, Bradley requested a venue change and jury trial
violated Texas Rule of Civil Evidence 605 when board                that justice court rules provide for, but both requests conflict
members who sat as judges in Bradley's removal court also           with the statute's express statement that “[a] majority of
testified as witnesses against him. In so doing, the Court          the aldermen constitutes a court to try and determine the
sidesteps a more fundamental flaw in the removal: the statute       case against the mayor.” TEX. LOC. GOV'T CODE §
governing removal proceedings is unconstitutionally vague           21.002(g). This specific textual provision of the statute
and thus denies Bradley due process and due course of law.          precludes Bradley's proposal to apply all justice court rules
See U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, §              and all rules of civil procedure. See TEX. GOV'T CODE §
19. Because I would hold the statute used to remove Bradley         311.026 (codifying the common-law doctrine for statutes in
is void for vagueness, I concur in the Court's judgment.            pari materia, which states that when an irreconcilable conflict
                                                                    occurs between a general and a special statutory provision,
                                                                    the special provision prevails as an exception to the general
                                                                    provision). As the State contends, application of all the justice
                               I
                                                                    court rules and rules of civil procedure would lead to an
The statute providing for removal of a mayor in a general-          “absurd result.”
law municipality such as Westlake states that “a majority
of the aldermen constitutes a court to try and determine            The interpretation of the statute that the State urges suffers
the case against the mayor,” and the removal proceeding             from its own flaws. The State's argument leaves it to the
“is subject to the rules governing a proceeding or trial in         caprice of the aldermen—many of whom are untrained in the
a justice court.” TEX. LOC. GOV'T CODE § 21.002(g),                 rules of procedure and evidence—to pick and choose which
(h). Bradley asserts that a removal proceeding is a civil           rules may apply to a removal proceeding, and to choose which
proceeding, and civil justice court rules provide for, among        rules may not apply because they are “in conflict with” the
                                                                    structure of removal proceedings. A mayor subject to these
other things, venue change, 1 empaneling of juries, 2 a right
                                                                    removal proceedings would not know exactly which rules
to appeal, 3 and *251 a right to move for new trial. 4 Bradley      apply until the aldermen make that decision—a decision that
further argues that Rules of Civil Procedure and Evidence           may not be made until the proceedings are already underway.
apply through Texas Rule of Civil Procedure 523, which              In effect, the State asks the Court to swap the “absurd result”
states that “[a]ll rules governing the district and county courts   that follows from Bradley's contentions for the arbitrariness
shall also govern the justice courts, insofar as they can be        that follows from its own proposal.
applied, except where otherwise specifically provided by law
or these rules.” TEX.R. CIV. P. 523. Bradley contends that          The Court should not be constrained to choose the lesser
                                                      5
these applicable rules provide for recusal of judges, prohibit      of the evils presented by the parties. Instead, the statute's
judges from testifying in cases in which they sit, 6 and            unavoidable incongruities and ambiguities lead me to
allow the right to full cross-examination and impeachment of        conclude, as Bradley argues in the alternative, that it is
                                                                    unconstitutionally vague.
witnesses. 7

The State responds that “to graft onto § 21.002 all of the
rules of civil procedure would render the statute virtually                                        II
meaningless” and “would lead to an absurd result.” Following
the State's logic, the court of appeals concluded that justice      Under the United States Constitution, “[i]t is a basic principle
court rules should apply when they are “not in conflict with”       of due process that an enactment is void for vagueness if
the intended structure of removal proceedings. 956 S.W.2d           its prohibitions are not clearly defined. Vague laws offend
725, 738.                                                           several important values.” Grayned v. City of Rockford, 408
                                                                    U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). They
Both approaches are flawed. Bradley's contention founders           “may trap the innocent *252 by not providing fair warning”
upon the clear text of the statute. Although section 21.002(h)      and they “impermissibly delegate[ ] basic policy matters to
states that a removal proceeding is subject to the rules            policemen, judges, and juries for resolution on an ad hoc
governing a justice court trial, several justice court rules        and subjective basis, with the attendant dangers of arbitrary
directly contravene requirements of section 21.002. For             and discriminatory application.” Id. at 108–09, 92 S.Ct. 2294.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

In order to avoid these dangers, the Due Process Clause             Antiquities Comm., 554 S.W.2d at 927 (plurality decision
requires that laws be reasonably clear. As the Supreme Court        stating that “varying degrees of specific standards” have
explained, due process:                                             been required in testing vagueness and breadth of legislative
                                                                    delegations, “[d]epending upon the nature of the power, the
             ensures that state power will be                       agency, and the subject matter”). In the case of this statute,
             exercised only on behalf of policies                   the Court should consider that few actors deserve more clarity
             reflecting an authoritative choice                     than elected officials who can be removed from office at the
             among competing social values,                         hands of other competing elected officials.
             reduces the danger of caprice and
             discrimination in the administration
             of the laws, enables individuals
             to conform their conduct to the                                                      III
             requirements of law, and permits
                                                                    The statute at issue, which provides for removal of a mayor
             meaningful judicial review.
                                                                    in a general-law municipality, is a civil statute. See Meyer v.
Roberts v. United States Jaycees, 468 U.S. 609, 629, 104 S.Ct.      Tunks, 360 S.W.2d 518, 520–21 (Tex.1962) (action to remove
3244, 82 L.Ed.2d 462 (1984).                                        a county officer is civil in nature). Our vagueness review must
                                                                    therefore apply a more tolerant standard for civil statutes. 8
Responding to these concerns, the United States Supreme
Court and this Court have long applied the principle that           The statute fails even under that deferential standard. In Texas
statutory language may not be so vague that persons “of             Antiquities Committee, a plurality of the Court professed that
common intelligence must necessarily guess at its meaning           “[t]here has been called to our *253 attention no case in
and differ as to its application.” Connally v. General Constr.      Texas or elsewhere in which ... powers ... are more vaguely
Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322                  expressed or less predictable than those permitted by the
(1926), quoted in Texas Antiquities Comm. v. Dallas County          phrase in question.” Texas Antiquities Comm. 554 S.W.2d
Community College Dist., 554 S.W.2d 924, 928 (Tex.1977)             at 927. 9 The exercise of powers under this statute is hardly
(plurality opinion).                                                more predictable. In the context of a proceeding to remove a
                                                                    mayor in which his fellow aldermen are directed to sit as a
Although the vagueness standard applies most frequently to          court, the phrase “subject to the rules governing a proceeding
penal statutes, a civil statute may also be so vague that it        or trial in a justice court” may at first glance seem clear. When
violates due process. See A.B. Small Co. v. American Sugar          one is forced to apply the provision, however, the inherent
Ref. Co., 267 U.S. 233, 239–40, 45 S.Ct. 295, 69 L.Ed. 589          ambiguities become inescapable. The confusion and potential
(1925) (explaining that the rationale of previous vagueness         disregard for Bradley's rights that his petition describes—
cases is not limited only to criminal cases because “[i]t was
                                                                    as well as similar predicaments described by amici 10 —
not the criminal penalty that was held invalid, but the exaction
                                                                    illustrate this lack of a comprehensible standard.
of obedience to a rule or standard which was so vague and
indefinite as really to be no rule or standard at all”); Jones v.
                                                                    A significant number of civil rules for a justice court
City of Lubbock, 727 F.2d 364, 373 (5 th Cir.1984); Texas           either conflict directly with the statute's scheme for removal
Antiquities Comm., 554 S.W.2d at 927–28 (plurality decision
                                                                    proceedings, 11 or they provide no relevant guidance to
striking down a civil statute as unconstitutionally vague).
The degree of clarity that the vagueness standard requires,         a board of aldermen. 12 Whether other justice court rules
however, “varies according to the nature of the statute, and the    apply has been and will continue to be a matter of
need for fair notice or protection from unequal enforcement.”       guesswork for aldermen, mayors, and even reviewing courts,
Jones, 727 F.2d at 373; see also Village of Hoffman Estates v.      leaving a situation ripe for “resolution on an ad hoc and
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102         subjective basis, with the attendant dangers of arbitrary and
S.Ct. 1186, 71 L.Ed.2d 362 (1982) (“[Vagueness] standards           discriminatory application.” Grayned, 408 U.S. at 109, 92
should not, of course, be mechanically applied. The degree          S.Ct. 2294. For example, does the successful party recover
of vagueness that the Constitution tolerates—as well as the         costs as provided by Civil Rule 559? 13 Can the removal
relative importance of fair notice and fair enforcement—            “court” order a new trial, as provided by Civil Rules 567–
depends in part on the nature of the enactment.”); Texas


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

70? 14 If so, could a new trial be ordered by newly elected         “a majority of the aldermen constitutes a court.” Assuming,
aldermen taking the place of the aldermen who presided over         as the Court does, that Evidence Rule 605 or Civil Procedure
the original trial?                                                 Rule 18b apply, what occurs if at least half of the aldermen
                                                                    must be recused because of bias or the necessity that
Texas Rule of Civil Procedure 523, which states that rules          they testify? The statute provides no guidance—“no rule or
governing district and county courts shall also govern justice      standard at all.” 15 Neither does the Court.
courts, creates an assortment of other conundrums. Do
Evidence Rule 605, prohibiting a judge from testifying as a
witness, and Texas Rule of Civil Procedure 18b, providing
                                                                                                  IV
for recusal of interested judges, apply to aldermen sitting
as removal judges? Evidently the Court believes that Civil          Admittedly, courts “will often strain to construe legislation
Procedure Rule 605 applies, and both of these rules would           so as to save it against constitutional attack.” Scales v.
seem to apply under the language of both the statute and Civil      United States, 367 U.S. 203, 211, 81 S.Ct. 1469, 6 L.Ed.2d
Procedure Rule 523. However, these rules stand opposed              782 (1961). Nevertheless, even if the Court assumed the
to the reality that the very aldermen who sit as a court to         burden of repairing this paradoxical statute, the task would
try the mayor may also be the ones who bring the charge,            require such a revision of the Legislature's words that
“may have substantial knowledge of the evidence to be               the Court would exceed the bounds of its proper role in
presented,” or may have had past differences with the mayor.        our divided government. The “constructions” urged by the
See Quinn v. City of Concord, 108 N.H. 242, 233 A.2d 106,           parties would require us either to ignore specific words
108 (1967); see also Rutter v. Burke, 89 Vt. 14, 93 A. 842,         of the statute or to write our own ad hoc exceptions
849 (1915) (holding that a mayor who acted as accuser,              into the statute. As one scholar has recognized, “there
prosecutor, and witness was not disqualified from voting,           is a difference between adopting a saving construction
because “the Constitution of the city council, its exclusive        and rewriting legislation altogether.” TRIBE, AMERICAN
jurisdiction as a trier, and the diversity of duties imposed upon   CONSTITUTIONAL LAW § 12–30, at 1032 (2d ed., 1988).
it, preclude the idea that impartiality can be made the test”       We are invited to do the latter, but I believe we should
of the right of a board member to sit in a proceeding); State       decline the invitation. See West Virginia State Bd. of Educ.
v. Common Council, 72 Wis.2d 672, 242 N.W.2d 689, 698               v. Barnette, 319 U.S. 624, 651, 63 S.Ct. 1178, 87 L.Ed. 1628
(1976) *254 ( “[T]he mere fact that [a council member]              (1943) (“It is, of course, beyond our power to rewrite the
had stated under oath ... that there were grounds to remove         State's requirement....”) (Frankfurter, J., dissenting); United
[the city clerk] did not disqualify him from subsequently           States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875) (“To
sitting as an impartial adjudicator.”); 4 MCQUILLIN, THE            limit this statute in the manner now asked for would be to
LAW OF MUNICIPAL CORPORATIONS § 12.259.20, at                       make a new law, not to enforce an old one. This is no part of
595 (3rd ed. 1992) (“[I]n a proceeding to remove, members           our duty.”).
of the council are not disqualified because of the fact that they
were members of a committee to investigate and afterwards           Rewriting a statute rife with traps and uncertainties is the
preferred charges; the fact that they may have formed an            power and duty of the Legislature. As the controversy at
opinion concerning the accused is regarded as immaterial.”).        hand evinces, the decisions of local governments affect the
Indeed, the aldermen may well be the only people familiar           lives of their citizens as profoundly and concretely as those
with the facts underlying the removal proceeding. Cf. id.           of any other level of government. Sometimes a mayor's
§ 12.259.25, at 598 (“Particularly, an objection for bias           conduct necessitates removal proceedings. Nevertheless,
against ... a member of a hearing tribunal will not be sustained    such proceedings can reverse a majority of the local citizens'
where to do so would destroy the only tribunal with power           judgment as to who is best to lead them. Consequently, our
in the premises.”). Rare would be the occasion when a               state government owes a duty not only to the mayor but to his
mayor could be tried by truly disinterested, unbiased, and          colleagues and constituents to ensure that such proceedings
uninformed aldermen. Yet that is the fiction that the Court         are neither arbitrary nor unfair, and never unconstitutional.
forces upon the parties.                                            This vague and unwieldy statute fails to carry out the task. I
                                                                    urge the Legislature to mend it soon.
Ignoring these probabilities and applying these rules sets the
stage for future enigmas. For instance, the statute states that



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Bradley v. State ex rel. White, 990 S.W.2d 245 (1999)
42 Tex. Sup. Ct. J. 513

All Citations

990 S.W.2d 245, 42 Tex. Sup. Ct. J. 513


Footnotes
1      Because the removal trial was held April 28, 1997, the former Texas Rules of Civil Evidence apply. Former Texas Rule
       of Civil Evidence 605 is identical to current Texas Rule of Evidence 605. See TEX.R. EVID. 605.
2      Bradley testified that he canceled the meeting and removed the notice because it was an illegally called meeting.
1      See TEX.R. CIV. P. 528.
2      See TEX.R. CIV. P. 544.
3      See TEX.R. CIV. P. 573.
4      See TEX.R. CIV. P. 567.
5      See TEX.R. CIV. P. 18b.
6      See TEX.R. CIV. EVID. 605 (currently TEX.R. EVID. 605).
7      See TEX.R. CIV. EVID. 607 (currently TEX.R. EVID. 607); TEX.R. CIV. EVID. 611(b) (currently TEX.R. EVID. 611 (b)).
8      See Chavez v. Housing Auth., 973 F.2d 1245, 1249 (5
                                                                     th
                                                                          Cir.1992) (A civil statute that does not implicate the First
       Amendment is sufficiently unclear to violate due process if it is “ ‘so vague and indefinite as really to be no rule or standard
       at all’ or if it is ‘substantially incomprehensible’ ”); Jones, 727 F.2d at 373 (same).
9      The vague phrase in Texas Antiquities Committee was “buildings ... and locations of historical ... interest.” Id.
10     Amici Paul Skelton and Marian Hill describe their experiences with removal proceedings in Parker and Seven Points,
       Texas. Skelton argues that the court of appeals' construction of the removal statute violates separation of powers and
       due process guarantees. Hill argues that the removal statute in question is unconstitutionally vague.
11     See TEX.R. CIV. P. 527–32 (relating to motions to transfer and venue changes); TEX.R. CIV. P. 540, 542, 544–56
       (relating to juries).
12     See TEX.R. CIV. P. 524 (justices to keep a civil docket); TEX.R. CIV. P. 533 (requisites for writ or process from justice
       courts); TEX.R. CIV. P. 543 (dismissal for plaintiff's failure to appear); TEX.R. CIV. P. 560 (judgment for specific articles
       of property); TEX.R. CIV. P. 561 (enforcing a judgment for property).
13     See TEX.R. CIV. P. 559.
14     See TEX.R. CIV. P. 567–70.
15     See Chavez, 973 F.2d at 1249; Jones, 727 F.2d at 373.


End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 8
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


                                                               City of Austin (Austin) appeals a take-nothing judgment
                                                               rendered in favor of Houston Lighting & Power Company
                   844 S.W.2d 773
                                                               and its parent company, Houston Industries, Inc. (collectively
               Court of Appeals of Texas,
                                                               HL & P), in this action for breach of a contract to build a
                         Dallas.
                                                               nuclear power plant, fraud, and violation of the Deceptive
           CITY OF AUSTIN, Appellant,                          Trade Practices Act (DTPA). In six points of error, Austin
                       v.                                      argues that the trial court erred by (1) sustaining HL & P's
    HOUSTON LIGHTING & POWER COMPANY                           special exceptions to Austin's cause of action for breach
                                                               of the implied duty to perform the contract with skill
      and Houston Industries, Inc., Appellees.
                                                               and care, (2) overruling Austin's hearsay objections to the
          No. 05–89–01354–CV. | Oct. 7,                        admission of several newspaper articles, (3) refusing Austin's
     1992. | Rehearing Denied Nov. 18, 1992.                   requested jury questions and instructions, (4) overruling
                                                               Austin's objections to jury question two, and (5) overruling
City which participated in nuclear facility construction       Austin's motion for new trial. HL & P raises what it
project sued managing participant for breach of contract,      characterizes as two conditional cross-points, but what this
fraud, and violation of Deceptive Trade Practices Act          Court would term counterpoints. See Jackson v. Ewton, 411
(DTPA). The 101st Judicial District Court, Dallas County,      S.W.2d 715, 717 (Tex.1967); Ragsdale v. Progressive Voters
Clarence A. Guittard, J., rendered take-nothing judgment       League, 743 S.W.2d 338, 342 (Tex.App.—Dallas 1987),
for managing participant. City appealed. The Court of          rev'd on other grounds,790 S.W.2d 77 (Tex.1990). HL &
Appeals, Kinkeade, J., held that: (1) managing participant     P argues that we should affirm the trial court's judgment
had no implied duty to perform contract with skill and care;   because there is no evidence that any failure by HL & P to
(2) certain newspaper articles were not hearsay; and (3)       provide information caused any cost increase and because
managing participant did not violate DTPA.                     Austin is not a “consumer” as to HL & P as defined by the
                                                               DTPA. Because the trial court did not err by (1) granting
Affirmed.                                                      HL & P's special exceptions, (2) admitting the newspaper
                                                                *778 articles, (3) refusing to submit Austin's requested jury
                                                               questions and instructions, (4) overruling Austin's objections
Attorneys and Law Firms                                        to jury question two, and (5) denying Austin's motion for new
                                                               trial, we overrule all of Austin's points of error and need not
 *777 Fulbright & Jaworski, Roger Townsend, Ronald J.
                                                               address HL & P's cross-points in which HL & P asks only for
Palmer, Ben Taylor, Jeff Dykes, Jeffrey S. Wolff, Houston,
                                                               affirmance. We affirm the trial court's judgment.
Carrington, Coleman, Sloman & Blumenthal, James E.
Coleman, Marvin S. Sloman, Dallas, Liddell, Sapp, Zivley,
Hill & Laboon, John L. Hill, Jr., Roy Atwood, Houston, City
of Austin, Iris J. Jones, Acting City Atty., John T. Gooding                      FACTUAL HISTORY
II, Mark G. Yudof, Austin, for appellant.
                                                               The Lower Colorado River Authority (LCRA), Central
Graves, Dougherty, Hearon & Moody, Robert J. Hearon, Jr.,      Power & Light (CP & L), the City of San Antonio (San
Thomas B. Hudson, Jr., Matthew G. Dore, Michael Diehl,         Antonio), Austin, and HL & P all belong to the South
Selden W. Bobbitt, Austin, Baker & Botts, Finis E. Cowan, J.   Texas Interconnected Systems. Formed in the 1940's, this
Gregory Copeland, Houston, Baker & Botts, Joe R. Greenhill,    interconnected group provides for the sharing of electricity
Minton, Burton, Foster & Collins, Roy Q. Minton, Martha S.     in emergencies and the staggered building of additional units
Dickie, Austin, for appellees.                                 to the individual systems to take advantage of each other's
                                                               generation powers. On July 14, 1971, the group met and
Before THOMAS, KINKEADE and OVARD, JJ.                         discussed for the first time the possibility of building a jointly
                                                               owned nuclear power plant.

                        OPINION                                On December 14, 1971, all of the participants in this
                                                               interconnected entered into a preliminary agreement to share
KINKEADE, Justice.                                             the costs of studies to determine the feasibility of licensing,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


constructing, and operating a jointly owned two-unit nuclear        As project manager, HL & P's responsibility included
powered electric generating plant. The group formed a study         hiring an Architect/Engineer(A/E)-constructor to design and
committee, which employed the Nuclear Utilities Systems             build the plant. In June 1972, after an allegedly intensive
Corporation to conduct feasibility studies. Upon completion         investigation, HL & P tentatively recommended Brown
of these feasibility studies, each participant would decide         & Root to the study committee for the position of A/E-
whether to agree to participate and build the South Texas           constructor on the project. Before making a final commitment
Project (the project).                                              to hire Brown & Root, however, HL & P wanted to further test
                                                                    Brown & Root's capabilities by having it do additional site-
In its report presented to the study committee on January           study work for the project and assist *779 in developing the
13, 1972, Nuclear Utilities Systems estimated that it would         specifications for the project's nuclear steam supply system.
take twenty-two staff members of HL & P to handle the               The steam supply system takes the steam produced by the
project and estimated the cost of the project at $902 million       heat from the nuclear reactor and transfers it to the turbine
for both units. The report also projected October 1, 1980, as       generator, which in turn rotates and produces electricity.
the completion date for unit one and March 1, 1982, for unit
two. Having tentatively decided, after receiving this report,       On June 11, 1974, after Brown & Root completed these
to build a jointly owned nuclear power plant and wanting to         tasks to all of the participants' satisfaction, HL & P and
avoid delays in proceeding with preliminary work pending            Brown & Root signed a contract in which Brown & Root
completion and execution of a participation agreement, all          agreed to act as the A/E-constructor for the project. Brown
of the participants entered into an interim agreement on            & Root contracted for a fixed profit, or “cost plus” basis,
June 15, 1972. In this agreement, the participants chose            and the contract required it to complete ninety percent of the
HL & P as the project manager. HL & P agreed to serve               total engineering work before starting construction. All of
as the project manager without compensation, except for             the participants previously had employed Brown & Root to
the reimbursement of project-related expenses, including            perform various construction projects and were satisfied with
overhead. In the construction of a nuclear power plant,             its work. They also knew that Brown & Root had no previous
regulations require the project manager to act as licensee          nuclear experience and that this was the first nuclear power
and to represent the project before the Nuclear Regulatory          plant Brown & Root had contracted to design and build.
Commission (NRC).
                                                                    Brown & Root's responsibilities as A/E-constructor included
In September 1972, LCRA and Austin decided not to                   aiding HL & P in evaluating and selecting the steam
participate in the project. On September 6, 1972, LCRA              supply system unit for the project. At the July 13, 1973
authorities passed a resolution not to participate in the project   management committee meeting, HL & P discussed in detail
because they felt that nuclear power plants were still in the       its and Brown & Root's bid analyses and recommended
experimental stage and that the economics of such plants            the selection of the Westinghouse 3800 unit based on
were questionable. Austin chose not to participate because its      Westinghouse's final contract. The participants accepted
voters did not approve the bonds for the project.                   HL & P's recommendation and signed a contract with
                                                                    Westinghouse in 1974.
On July 1, 1973, San Antonio, CP & L, and HL & P
executed the participation agreement, which provided for the
joint licensing, construction, operation, and maintenance of
                                                                                  Austin's Entry into the Project
the project. Each participant owned an undivided interest as
follows: San Antonio, thirty percent (30%); CP & L, thirty          In late 1972 and early 1973, Austin began experiencing
percent (30%); and HL & P, forty percent (40%). Under the           problems with fuel availability. Austin relied entirely on
participation agreement, the owners agreed to share all costs       natural gas for its electricity generation. On May 24, 1973,
proportionately. The agreement provided for a management            the Austin City Council received a report from the mayor's
committee, composed of an officer or general manager from           Energy Study Commission, which recommended that Austin
each participant, and a project manager. The agreement also         participate in a joint venture for the development of coal or
provided that the project manager could be removed by a             lignite power or a joint venture for a nuclear power plant. It
simple majority vote.                                               did not specifically recommend that Austin participate in the
                                                                    project.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)




In a November 1973 bond election, Austin voters approved
                                                                                    Construction of the Project
$161 million for Austin to participate in the project. On
December 14, 1973, Austin's representative, R.L. Hancock,           In January 1973, the project participants agreed on the final
began attending the management committee meetings. At that          site selection in Matagorda County, just outside of Bay City,
meeting, he received all the back copies of the management          Texas. CP & L purchased the property, and, in December
committee's meeting minutes. Austin never asked about the           1973, Brown & Root submitted its first cost and schedule
contents of the previous meeting minutes or for any other           estimate for the project. In May 1974, HL & P submitted the
documents before signing the participation agreement. On            preliminary safety analysis report to the NRC. This ended the
December 21, 1973, Austin joined the other participants in the      preliminary design phase. HL & P then turned its attention
project by executing the first amendment to the participation       toward getting the limited work authorization, which HL & P
agreement. With the execution of the amendment, Austin              needed in order to obtain a construction permit.
became a sixteen percent undivided interest owner with the
three other cotenants. The entry of Austin into the project         In June 1975, Brown & Root issued a revised preliminary
reapportioned the other participants' undivided interests as        construction cost estimate. This estimate projected an
follows: San Antonio, 28%; CP & L, 25.2%; and HL & P,               increase of costs from $1 billion to $1.27 billion. Concerned
30.8%.                                                              about this estimate, HL & P subjected Brown & Root to a
                                                                    thorough audit of its overall administration and management
At the time Austin entered the project, it knew that (1) the        of the project. This audit identified many concerns as to
participants had chosen HL & P to act as project manager and        Brown & Root's performance, including whether it could
that HL & P's only involvement with nuclear power plants            meet the scheduled operating dates. Although HL & P told
was its recent experience with its Allens Creek project, (2)        Brown & Root of its concerns at that time, it did not inform
Brown & Root had signed a letter of intent to act as the A/E-       the management committee of its discoveries. On August
constructor on a “cost plus” basis, and (3) the size of the steam   4, 1975, HL & P sent a letter to the participants informing
supply system had been increased from 1150 megawatts to             them that Brown & Root had not properly validated the cost
1250 megawatts. Before entering the participation agreement,        estimate and expressed concern that the cost estimate was
Austin made no inquiry into the selection process used in           incorrect and needed modification.
choosing the steam supply system, the budget, or Brown &
Root's technical capability to perform the job. Austin asked        In September 1975, pursuant to the limited work
only about the status of the contract with Brown & Root.            authorization permit received in August 1975, Brown &
                                                                    Root began clearing the plant site and performing other
Between 1974 and 1979, the entire nuclear power industry            preliminary non-safety-related construction. After satisfying
changed. In 1974, Congress separated promotion of nuclear           the NRC's requirements, the project received its construction
power from its regulation with the creation of the NRC.             permit, which allowed Brown & Root to begin safety-related
Once the NRC took over the regulatory function, safety              construction in December 1975, ten days ahead of schedule.
requirements increased significantly. Between 1975 and              In early 1976, in response to Brown & Root's complaints
1979, the NRC issued new regulations about every two                about Westinghouse's failure to produce design documents on
weeks. These regulations were partly in response to a 1975          time, HL & P hired an engineering consultant to determine
fire that struck the Brown's Ferry nuclear plant in Alabama         how Westinghouse's many design changes to its 3800 unit
and the March 28, 1979 accident that occurred at the Three          affected the schedule. The audit showed that the changes had
Mile Island nuclear plant in Pennsylvania. As a result of           affected the schedule. HL & P shared the results of this audit
 *780 a series of investigations of the Three Mile Island           with Westinghouse but not with the management committee.
accident, the NRC toughened its enforcement of regulations
and regulatory guides at all nuclear plants. The NRC stopped
all licensing reviews, shut down all plants with reactors
similar to those at Three Mile Island for a period of time, and        1976 Decision to Start Safety–Related Construction
more rigidly interpreted its regulations.
                                                                    In 1971, based on the performance of A/E-constructors on
                                                                    other nuclear projects, Brown & Root estimated that it would
                                                                    take a total of one million engineering man-hours to complete


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


the project's engineering work. By September, 22, 1975, this     and schedule estimate; and (3) project organization, including
number had increased to almost 2 million, sixty percent of       policy and procedure manuals.
which Brown & Root had already used. At the March 1976
management committee meeting, Brown & Root represented           HL & P determined that the draft report furnished enough
that it had completed this percentage. The project, however,     information to correct the problems and directed Management
ultimately required fifteen to twenty million engineering        Analysis not to prepare a final report, though it felt that
man-hours. Therefore, in hindsight, Brown & Root actually        some of the information in the draft report was inaccurate.
had completed less than eight percent of the total engineering   On June 10, 1977, HL & P gave an oral report to the
work eventually performed on the project.                        management committee of Management Analysis's findings
                                                                 and the major items that HL & P thought it needed to pursue
At each monthly management committee meeting, HL &               with corrective action. None of the committee members
P provided the participants with (1) a monthly progress          requested a copy of the written report. In response to the
report, which included an engineering progress report, (2) a     report, HL & P undertook several actions to carry out
construction progress report, and (3) an executive summary       Management Analysis's recommendations. Also in response
report. These reports visually showed which items were on or     to the report, the management committee formed a task force
behind schedule and provided a written explanation.              composed of people from Brown & Root, HL & P, and
                                                                 Management Analysis to develop a realistic cost and schedule
At the March 1976 management committee meeting, Brown            estimate.
& Root reported that its engineering and construction were
both on schedule. When asked whether its engineering             In September 1978, the task force presented an interim report,
could support the construction schedule, Brown & Root's          which added eighteen months to the schedule and estimated
representative responded, “Hell, yes.” After receiving this      the final cost at $2 billion. The task force further determined
assurance from Brown & Root, the management committee            that significant cost and schedule increases were necessary
voted to let safety-related construction begin. As noted         and that it needed six additional months to develop a more
earlier, Brown & Root already had started construction under     definitive estimate. HL & P sent Austin a copy of this report.
a limited work authorization *781 in September 1975.             In November 1978, HL & P met with Austin's mayor, its
It already had dug the hole for the reactor containment          city council, assistants, and staff, and its Citizens' Electric
building, had started placing rebar, and had poured some         Utility Commission at the airport in Houston to provide them
nonpermanent structural concrete. In April 1976, Brown &         with an update on the project. HL & P allegedly tried to
Root began safety-related construction, which meant that it      answer questions and make Austin's representatives aware
started pouring the concrete for the permanent structures.       of the uncertain status of the estimates. Later, newspaper
                                                                 articles appeared in Austin newspapers discussing whether
                                                                 Austin's management committee representative had kept the
                                                                 city council sufficiently informed about the problems at the
       1977 Management Analysis Company Audit
                                                                 project. In August 1979, HL & P presented the task force's
The project remained close to schedule for the next year.        new, more definitive “baseline” cost estimate of $2.7 billion
In 1977, however, Brown & Root fell behind the original          to the management committee. The committee, however, did
schedule set for the project. In response, HL & P hired the      not adopt the estimate until May 1980.
Management Analysis Company, a managing consultant that
advises utilities, pipeline companies, suppliers, A/Es, and
constructors on financial planning matters as well as project                   1980 NRC Show Cause Order.
construction and operations management. HL & P asked
Management Analysis to perform an evaluation and audit of        The NRC requires the licensee of a nuclear power plant
HL & P's project management organization and to identify         to set up and execute a quality assurance program. Quality
problems that could critically impact the achievement of the     assurance includes all those planned and systematic actions
project. Management Analysis presented its findings in a         necessary to provide adequate confidence that a structural
draft report to HL & P in June 1977. The report identified       system or component will perform satisfactorily in service.
three major concerns: (1) project procurement; (2) the cost      Periodically, the NRC's inspection force looks at a project's




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


construction activity records to determine whether that            project eventually peaked at 600, an increase of 578 personnel
project is meeting the NRC's quality assurance requirements.       over the original study estimate of 22.

Between October 10, 1979 and February 7, 1980, the NRC
investigated the project. The NRC determined that Brown &
                                                                                   PROCEDURAL HISTORY
Root had not conducted certain quality assurance activities
in compliance with the NRC's requirements. Although the            In December 1981, the participants sued Brown & Root. They
deficiencies primarily resulted from Brown & Root's failure        alleged that Brown & Root (1) was not qualified, (2) had
to carry out an effective quality assurance program, the NRC       breached its construction contract calling for performance to
held *782 HL & P, as the project manager and licensee,             the highest standards, (3) had a deficient quality assurance
responsible. The NRC served a notice of violation, imposed         program, and (4) had lied when it told the management
a $100,000 civil fine, and issued a show cause order on            committee that Brown & Root was ready to begin safety-
HL & P. The show cause order outlined the actions that             related construction in April 1976. The participants recovered
HL & P needed to take to convince the NRC to allow                 $750 million.
the project's safety-related construction activities to continue
uninterrupted. Although HL & P felt that several of the NRC's      Austin then brought this suit against HL & P to recover its
findings were inaccurate, it paid the fine without objection so    sixteen percent share of the cost overruns. Austin alleged
it that could save money in the long run, continue the plant's     breach of contract, fraud, and DTPA violations. Austin
construction, and maintain good relations with the NRC.            limited its complaints to the events that occurred between
                                                                   1973 and 1981 while Brown & Root was the A/E-constructor
                                                                   on the project and during which the participants spent $1.78
  Termination of Brown & Root as the A/E–Constructor               billion. The trial court allowed the parties to use the discovery
                                                                   obtained in the earlier Brown & Root litigation.
In September 1981, after Brown & Root reported that it
expected to progress toward the completion date at a rate          Austin based its contract claims on two alternate theories.
of only 0.5% per month for the next eighteen months, the           First, Austin asserted that, if HL & P had told the management
management committee decided to remove Brown & Root                committee in April 1976 that Brown & Root's engineering
as the A/E. In September 1981, Bechtel replaced Brown &            was inadequate to support construction at that time, the
Root as the A/E. After Brown & Root refused to remain in           committee would have voted to delay construction to allow
the limited capacity of constructor, HL & P replaced it in that    engineering to catch up and the plant could have been built
capacity with Ebasco. At the time that Brown & Root left the       for $3.2 billion. Second, Austin asserted that if HL & P
project, the participants had spent $1.78 billion, $1 billion of   had provided more information in 1978, the construction
which was accounted for by equipment and materials. When           of the plant would have been deferred for a year and the
Bechtel took over, it presented a new cost estimate of $5.5        plant could still have been built for $3.2 billion. HL & P
billion to complete the project. After taking over for Brown       defended by asserting that (1) the information that it allegedly
& Root, Bechtel's only major rework was to move the pipes          withheld was frequently not information in the usual sense,
coming from the cooling pond. To keep track of the cost of         but only hindsight opinions or speculations or unproved
any rework, repairs, or regulatory charges that might have         allegations from the Brown & Root litigation, (2) Austin
resulted from Brown & Root's mistakes, Bechtel set up a            provided no causal link between any failure of HL & P to
special account. Bechtel charged a total of $250 million to        provide information and any increase in the project's costs, (3)
that account.                                                      the $3.2 billion estimate was not attainable in any event, and
                                                                   (4) the project's actual cost and schedule was entirely *783
Between 1981 and 1988, Bechtel completed construction of           reasonable and could not have been improved upon even if
the project. Unit one became operational in August 1988, and       further information had been provided.
unit two became operational in June 1989. The final cost of
the project was about $6.013 billion, an excess of $5 billion      Before trial, the parties filed numerous pretrial motions.
over the original $902 million Nuclear Utilities Systems study     Disposition of some of the motions required the court
estimate. The number of HL & P staff needed to complete the        to interpret the participation agreement. In opinions
                                                                   accompanying its rulings on these motions, the trial court



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


held that under the agreement the project's management             v. Cox, 701 S.W.2d 677, 686 (Tex.App.—Dallas 1985, writ
lay with the management committee and that HL & P as               ref'd n.r.e.). The court, however, must liberally construe the
project manager had the duty to supply information to the          pleading attacked and accept as true all material factual
management committee on major matters and on significant           propositions alleged and all factual statements reasonably
factors affecting the project's cost and schedule. Based on        inferred from the allegations. Id. This Court will not disturb
one of these opinions, the court sustained HL & P's special        the trial court's rulings absent an abuse of discretion. Bader,
exceptions to Austin's mismanagement claims that HL &              701 S.W.2d at 686.
P (1) had breached provisions of the Brown & Root and
Westinghouse contracts, (2) had not exercised reasonable           HL & P specially excepted to Austin's fifth amended petition
skill and care, (3) had breached fiduciary duties, and (4) had     and moved to strike Austin's mismanagement claims that
failed to perform as a prudent utility manager and struck          HL & P (1) did not exercise reasonable skill and care in
those causes of action. During the trial, Austin asked the court   the performance of its obligations under the participation
to reconsider its sustaining of HL & P's special exceptions        agreement, (2) breached fiduciary duties, and (3) did not
to Austin's mismanagement claims. The court overruled              perform as a prudent utility manager. The trial court
Austin's motion and issued another opinion standing by its         struck Austin's mismanagement claims based on the court's
earlier interpretations of the participation agreement.            construction of the participation agreement.

The court's jury charge included questions as to breach of          [4] [5] [6] [7] On appeal, Austin does not argue that the
contract, fraudulent nondisclosure, and DTPA violations. The       participation agreement was ambiguous. When no ambiguity
jury found that HL & P did not supply the owners with all          exists, the trial court construes the contract as a matter of law.
of the information required under the participation agreement      Westwind Exploration v. Homestate Sav. Ass'n, 696 S.W.2d
but that Austin incurred no additional costs on the project as a   378, 381 (Tex.1985). To determine the contract's meaning,
result of HL & P's failure to furnish the required information.    the court considers the wording of the instrument in light of
As to fraud, the jury found that a relationship of trust and       the surrounding circumstances at the time the parties entered
confidence existed between Austin and HL & P. The jury also        into it and applies the pertinent rules of construction. *784
found that HL & P did not fail to disclose specified matters       City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d
with the intent to induce Austin to enter the participation        515, 518 (Tex.1968). The court gives effect to the parties'
agreement. As to the alleged DTPA violations, the jury found       intentions as expressed in the instrument. Gracia v. RC Cola–
none occurred. Based on the jury's findings, the trial court       7–Up Bottling Co., 667 S.W.2d 517, 520 (Tex.1984). The
entered a take-nothing judgment in HL & P's favor.                 parties' objective, not subjective, intent controls. Pinehurst,
                                                                   432 S.W.2d at 518; Dallas Bank & Trust Co. v. Frigiking,
                                                                   Inc., 692 S.W.2d 163, 166 (Tex.App.—Dallas 1985, writ ref'd
                                                                   n.r.e.).
        DUTY OF IMPLIED SKILL AND CARE

In its first point of error, Austin contends that the trial         [8]     [9] Implied terms arise from the parties' presumed
court erred when it sustained HL & P's special exceptions          intentions as gathered from the instrument as a whole.
and struck Austin's cause of action for HL & P's breach            Summers v. Consolidated Capital Special Trust, 783 S.W.2d
of its duty implied in law to perform with skill and care          580, 583 (Tex.1989); Danciger Oil & Ref. Co. v. Powell,
its obligations as project manager under the participation         137 Tex. 484, 490, 154 S.W.2d 632, 635 (1941); Ingram
agreement. Austin argues that the trial court misconstrued the     Freezers v. Atchison, T. & S.F. Ry., 464 S.W.2d 915, 919
participation agreement when it found that the agreement did       (Tex.Civ.App.—Dallas 1971, writ ref'd n.r.e.). It must appear
not impose this duty. For the reasons discussed below, we          either that the implied terms were so clearly within the parties'
overrule Austin's first point of error.                            contemplation that they thought it unnecessary to express
                                                                   them or appear that it is necessary to infer the terms to carry
                                                                   out the contract's full purpose. Danciger, 154 S.W.2d at 635;
                                                                   Ingram, 464 S.W.2d at 919.
                    Standard of Review

 [1]    [2]    [3] The trial court has broad discretion in
hearing, construing, and sustaining special exceptions. Bader



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


                                                                   this implied duty exists in every contract regardless of the
                                                                   parties' intentions. After a review of the whole contract, it
         Existence of the Duty in Every Contract
                                                                   is evident that the parties intended in this contract to place
 [10] Austin argues that the trial court misconstrued the          ultimate control of the project in an independent management
participation agreement because the duty of skill and care is      committee and that HL & P's duty to perform with skill
implied in every contract regardless of the parties' intentions.   and care attached only to HL & P's duty to provide material
To support this proposition, Austin relies on Coulson v.           information to that management committee.
Lake LBJ Municipal Utility District, 734 S.W.2d 649, 651
(Tex.1987); Montgomery Ward & Co. v. Scharrenbeck, 146             In Coulson, an engineer contracted with the defendant to
Tex. 153, 157, 204 S.W.2d 508, 510 (1947); and Westbrook           prepare plans and specifications to provide the defendant with
v. Watts, 268 S.W.2d 694, 697 (Tex.Civ.App.—Waco 1954,             utilities. The engineer prepared the plans and specifications,
writ ref'd n.r.e.). Austin relies on Public Service Enterprise     but the defendant refused to pay him. In its response
Group, Inc. v. Philadelphia Electric Co., 722 F.Supp. 184,         to the engineer's subsequent suit, the defendant alleged
209 (D.N.J.1989) (PECO ), to further argue that this implied       that the plans “were not prepared in a good and *785
duty applies to agreements to manage nuclear power plants.         workmanlike manner and do not meet the standards of
HL & P responds that a duty of skill and care exists in the        reasonable engineering practice.” Coulson, 734 S.W.2d at
participation agreement only if the parties intended to include    650. The parties asked the court to decide which party had
it.                                                                the burden to prove negligent performance. The court held
                                                                   that an engineer was entitled to a presumption that the work
Austin misplaces its reliance on Scharrenbeck, Coulson,            he performed was good and workmanlike and not negligently
Westbrook, and PECO. None of these cases:                          done when he proved compliance with the express terms of
                                                                   his professional contract. In relation to this issue, the court
  (1) involve an agreement among participants to share             cited the Scharrenbeck holding “that the common law duty to
     expenses,                                                     perform with skill and care accompanies every contract.” Id.
                                                                   at 651. The court, however, did not hold that an implied duty
  (2) involve a duty by the managing participant to provide        existed regardless of the parties' intentions. In Coulson, the
     material information to the other cotenants,                  engineer expected compensation, and there is no indication
                                                                   that, under the contract, the defendant had the right to review
  (3) involve a management committee with budget and
                                                                   the engineer's work. Here, HL & P received no compensation
     manpower control and the authority to replace the
                                                                   for its services, and the management committee reserved the
     manager by a simple majority vote, or
                                                                   right to review HL & P's work and to remove it as project
  (4) imply a duty to perform with reasonable skill and care       manager.
     where the parties expressed otherwise.
                                                                   In Westbrook, the court was asked to decide the correctness of
In Scharrenbeck, Montgomery Ward agreed to repair a water          a jury-charge definition of “good and workmanlike manner,”
heater. After making the repairs, the repairman's failure to       an express term in the contract. In relation to that issue, the
check the flue caused a fire that destroyed Scharrenbeck's         court stated, “[t]here is the general requirement applicable to
home. Scharrenbeck sued for negligence, and Montgomery             all contracts where one is required to perform a service that it
Ward asserted the absence of any duty owed to Scharrenbeck.        will be performed with reasonable care or skill.” Westbrook,
The court held “[a]ccompanying every contract is a common          268 S.W.2d at 697. The court, however, was not asked to
law duty to perform with care, skill, reasonable expedience        and did not decide whether this duty existed regardless of the
and faithfulness the thing agreed to be done.” Scharrenbeck,       parties' intentions.
204 S.W.2d at 510 (emphasis added). The court appears to
hold that a duty to perform with skill and care attaches only      In PECO, the nuclear power plant owners sued PECO,
to the performance of the acts the parties agreed to perform.      the operating owner, for breach of contract, negligence,
This requires the trial court to make a determination of the       misrepresentation, and fraud in connection with the NRC's
parties' presumed intentions as gathered from the instrument       shutdown of the plant in 1987, after the NRC was informed
as a whole. Austin fails to cite to any authority, and we          that operators at the plant were routinely sleeping on duty.
can find none, that interprets Scharrenbeck to mean that           PECO, 722 F.Supp. at 186, 187. Although PECO received



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


several warnings from the NRC in 1985 that the plant was            [11] Austin next contends that the trial court misconstrued
not up to industry standards, PECO never passed along              the participation agreement by rejecting Austin's argument
these criticisms to the other owners. Id. at 188–89. The           that the agreement meant to deviate from the stricter
joint operating agreement among the owners required PECO           reasonable skill and care standard only in the two limited
to “operate and maintain” the plant as an “independent             instances where it expressly specified the lower “best
contractor” responsible for the results obtained, and, in the      judgment” standard. Austin argues that only when the parties
agreement, PECO pledged to operate and maintain the station        have expressly rejected an “ordinary prudence” standard in
for the owners as if it were owned solely by PECO. Id.             favor of a “best judgment” standard will the courts remove the
at 186. PECO agreed to provide these services without              “prudent conduct” or “reasonable care” standard and impose
making a profit. Id. at 197. The agreement also established        a “best judgment” standard. Austin relies on Anbeck Co. v.
an owners' committee to coordinate the administration of all       Zapata Corp., 641 S.W.2d 608 (Tex.App.—Houston [14th
plant operation and maintenance matters and to review the          Dist.] 1982, writ ref'd n.r.e.), to support its contention.
plant's general performance and operations. The agreement
further required PECO to provide a daily status report to the      Austin misplaces its reliance on Anbeck. In Anbeck, the
owners' committee. As the plant's licensed operator, PECO          appellant argued that, because the parties' agreement gave the
was responsible for the plant's safe operation and had a           corporation the right to make all material decisions for the
duty to follow the laws and regulations covering nuclear           corporation's subsidiary, a corresponding legal duty to use
power plants. One of those regulations required the constant       “reasonable diligence” in its management of the subsidiary
presence of a licensed or senior operator at the controls          necessarily accompanied this right. Because the contract
during the plant's operation. Id. at 188. The owners alleged       did not expressly provide for this obligation, the court
that PECO's misrepresentations about the plant's operation         needed to determine whether the written contract implied a
prevented them from acting to prevent the plant's shutdown.        covenant that the corporation would manage the subsidiary
                                                                   with reasonable diligence and due care. Id. at 611. The court
PECO moved to dismiss the owners' tort claims, alleging            found that the agreement included covenants only that the
that the owners' breach of contract action precluded their tort    corporation would not use certain names in the corporation's
cause of action. In determining whether the owners could           subsidiary and that the corporation would use its best efforts
maintain both causes of action, the court had to decide the        to provide the subsidiary with up to $1,000,000 in working
source of PECO's duty to refrain from the complained-of            capital. The court held that the agreement's use of “best
conduct. The court held that, given the nature of PECO's           efforts” in one limited instance did not imply a general duty to
contractual obligations to efficiently operate and maintain        use reasonable skill and care. Anbeck, 641 S.W.2d at 613–14.
the plant and to keep the owners informed of the plant's
status, “the contract could certainly be interpreted under         A similar situation existed here. The participation agreement
Pennsylvania [law] to include an implied promise by PECO to        required HL & P to make the day-to-day decisions for the
render its services with reasonable skill and care.” Id. at 209.   project. The participation agreement, however, only specified
                                                                   a standard of performance in two limited situations:
Here, although the participation agreement imposed upon
HL & P duties similar to those imposed in PECO, it did               (1) Section 10.2.8 of the agreement required the project
not provide HL & P with “independent contractor” status                 manager to:
or specifically state that HL & P was responsible for the
                                                                        [f]ollow the practices and procedures which have been
results obtained. Without these additional obligations, it does
                                                                        reviewed and approved by the Management Committee
not appear necessary to infer a duty of reasonable skill and
                                                                        or, in the absence of such approved practices and
care in the agreement, especially considering the agreement's
                                                                        procedures, which reflect the best judgment of the
provision that allows the management *786 committee to
                                                                        Project Manager.
remove HL & P with a simple majority vote.
                                                                     (2) Section 24.1 of the agreement provided:

                                                                        Pending the resolution of any dispute by arbitration or
                “Best Judgment” Standard
                                                                        judicial proceedings, the Project Manager shall proceed
                                                                        with the Preconstruction Work, Construction Work,



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


     or Station Work in a manner consistent with this                    through some mismanagement. See Application of Gulf
     Participation Agreement and the Project Agreements                  State Utils. Co. for Authority to Change Rates, 14
     and with the best judgment of the Project Manager....               Tex. PUC Bull. 1943, 2429 (1988) (interpreting §§ 2,
                                                                         38, 39, and 41 of the Public Utility Regulatory Act,
(Emphasis added.) Because the agreement did not expressly                TEX.REV.CIV.STAT.ANN. art. 1446c (Vernon 1980 &
provide for a reasonable skill and care standard as urged by             Supp. 1992)).
Austin, the court needed to determine whether the written
contract implied such a covenant. Both of the cited provisions      The evidence does not show that:
involve situations in which HL & P would be acting without
the supervision of the management committee. Under the                (1) HL & P campaigned for or otherwise sought the job
remaining provisions of the participation agreement, HL & P              of project manager. Rather, the participants chose HL
is subject to management committee supervision and review.               & P after consideration of the Nuclear Utilities Systems
We conclude, as did the trial court, that this limited use of the        report, which recommended that HL & P act as project
“best judgment” standard of performance does not necessarily             manager for the first project and that one of the other
imply a general duty to use reasonable skill and care under              participants assume that duty for later projects,
other parts of the contract.
                                                                      (2) HL & P negotiated or bargained for increased political
                                                                         clout as the purchasing agent for the project. Further, the
                                                                         participation agreement provided for the removal of the
                   HL & P's Self–Interest                                project manager with a simple majority vote, or

 [12] Austin also contends that the trial court misconstrued          (3) HL & P received any additional compensation for
the participation agreement by determining that, because of              performing the duties of project manager.
HL & P's status as part owner, it would be motivated by
self-interest to perform well and that, therefore, a general
duty to perform with reasonable skill and care need not be
implied. Austin argues that HL & P's self-interest was not                           Mutual Right of Control
a sufficient motivator because HL & P received additional
                                                                     [13] Austin additionally contends that the trial court erred
forms of compensation that the other owners did not. Austin
                                                                    when it analogized business relationships to this case and
asserts that HL & P (1) *787 charged the other owners $473
                                                                    determined that an implied duty of skill and care did not apply
million for its diverse contractual services, (2) benefitted
                                                                    in all contracts. Austin argues that the law of partnerships and
economically by spreading its internal costs among the other
                                                                    joint ventures does not apply to this participation agreement
owners, (3) benefitted politically by virtue of the economic
                                                                    because there was no mutual right of control. Austin relies
muscle it enjoyed as purchasing agent and the employer of
                                                                    on State v. Houston Lighting & Power Co., 609 S.W.2d 263
several thousand workers, and (4) recouped its losses by
                                                                    (Tex.Civ.App.—Corpus Christi 1980, writ ref'd n.r.e.), to
increasing its rate base.
                                                                    support its contention.

The evidence shows that:
                                                                    In Houston Lighting & Power Co., the parties asked the court
  (1) the participation agreement did not provide for the           to decide whether the cities of Austin and San Antonio were
     project manager to receive compensation for its services.      liable for ad valorem taxes on their undivided interests in the
     Rather, the other participants agreed to pay their             same project and under the same participation agreement as
     proportionate share of the actual costs incurred by HL         the one at issue in this lawsuit. Id. at 265. HL & P and CP &
     & P as determined by independent audits, which neither         L had paid their share of the taxes. Austin and San Antonio
     Austin nor any of the other participants questioned, and       refused to pay the taxes assessed against their interests in
                                                                    the properties comprising the project. The cities claimed an
  (2) HL & P could not simply pass along its cost increases         exemption because their interests in the project were devoted
     to the public by increasing its rate base. To get a            exclusively to public use. The State argued that the court
     rate base increase, HL & P must prove to the Texas             for tax purposes should treat the project as a legal entity
     Public Utility Commission that its costs in building           in the nature of a partnership or a joint venture, which is,
     the project were prudently incurred rather than incurred



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


itself, liable for 100 percent of the taxes assessed against the     [14] Austin further contends that the trial court misconstrued
involved properties.                                                the participation agreement because the management
                                                                    committee's powers are limited. Austin argues that the
The court stated that a joint venture is like a partnership and     participation agreement does not grant the management
is usually limited to one enterprise. The essential elements of     committee the power to exercise “general supervision” over
a joint venture are (1) mutual right of control, (2) community      the project manager. Austin relies on sections 4.25 and 10.2.4
of interest, (3) agreements to share profits as principals, and     of the participation agreement for this proposition.
(4) agreements to share losses, costs, and expenses. Id. at
267. The court, limiting its analysis solely to whether the         Section 4.25, the definition portion of the agreement, provides
participants agreed to share profits, determined that they did      in part as follows:
not and as a result that no partnership or joint venture existed
and that the project was not liable for the assessment or                        PROJECT          MANAGER:         The
payment of any taxes against the *788 project. Id. at 268.                       Participant responsible for the
Contrary to Austin's assertion that the court in that case found                 planning, construction and operation
that the participation agreement showed no mutual right of                       of the various components of the
control, the court did not discuss that element of partnership.                  South Texas Project in accordance
Further, the court specifically stated in its review of the facts                with this Participation Agreement and
that the “[m]anagement is by a committee made up of one                          the Project Agreements.
representative from each participant.” Id. at 266. This finding
                                                                    This provision is a definition. It identifies the party with the
refers to the management committee and implies a mutual
                                                                    responsibilities enumerated in section 10 of the agreement.
right of control.
                                                                    This provision adds nothing to those responsibilities.

Because the participants did not agree to share profits as co-
                                                                    Section 10.2.4 of the agreement provides as follows:
owners of the project, we agree with Austin that the project
is neither a partnership nor a joint venture. We disagree,                       [The project manager shall] [p]rovide
however, that the trial court's analogy to cases involving                       for the engineering, design, contract
partnerships and joint ventures is inappropriate given Austin's                  preparation, purchasing, construction,
contention that the duty to use reasonable skill and care is                     reconstruction, repair, retirement,
imposed in all contracts. As illustrated by the cases relied                     replacement, supervision, training,
upon by the trial court, 1 that duty is not imposed in every                     expediting, inspection, testing, start-
instance. Those cases reveal that courts, in deciding not to                     up, protection, operation, maintenance
impose such a duty upon partnerships and joint ventures,                         and accounting of, or with respect to,
primarily rely on the partners' or joint venturers' mutual                       each component.
right to control the business or their agreement to share
losses, costs, and expenses. Although the participants in the        *789 Austin relies on the “provide for” language in this
instant case did not agree to share profits as co-owners of         provision to make its assertion that the parties' intended
the project, this element of a partnership or joint venture is      to impose an implied duty of skill and care on HL & P's
not pertinent to this analogy. The participants met all of the      performance. Austin asserts that this language specifically
other requirements of a partnership or joint venture: (1) a         and expressly delegates to HL & P, as project manager,
mutual right of control, (2) a community of interest, and (3) an    the ability to control or to manage the matters pertaining
agreement to share losses, costs, and expenses. The trial court,    to engineering, design, purchasing, construction, quality
therefore, appropriately analogized to those types of business      assurance, selection of contractors, and operation of the
relationships to show that an implied duty to use reasonable        project.
skill and care does not exist in every contract.
                                                                    The term “provide for” does not necessarily impose strict
                                                                    contract liability. See Sherman Simon Enters. v. Lorac Serv.
                                                                    Corp., 724 S.W.2d 13, 16 (Tex.1987). In Sherman Simon,
          The Management Committee's Powers                         the court held that an automobile rental agency satisfied
                                                                    an agreement to provide insurance coverage for one of



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


its customers when it secured a policy from an insurance           [15] [16] [17] An action in contract is for the breach of
company. Id. Here, Austin introduced no evidence that shows       a duty arising out of a contract, either express or implied.
that the parties had the intent or contemplated that HL & P       An action in tort is for a breach of a duty imposed by
would design and/or construct the project itself. Accordingly,    law. International Printing Pressmen & Assistants' Union
HL & P fulfilled its obligations pursuant to section 10.2.4       v. Smith, 145 Tex. 399, 409, 198 S.W.2d 729, 735 (1947).
when it contracted with Brown & Root and Westinghouse             Where the plaintiff may not maintain a cause of action
to perform those services as independent contractors. See         without proving the contract's contents, and the action's gist
Seaview Hosp., Inc. v. Medicenters of Am., Inc., 570 S.W.2d       is the breach of the contract, whether by malfeasance or
35, 39–40 (Tex.Civ.App.—Corpus Christi 1978, no writ)             nonfeasance, it is an action on the contract. Smith, 145 Tex.
(distinguishing between a contract to “furnish” services and      at 409, 198 S.W.2d at 735; Manzo v. Ford, 731 S.W.2d 673,
a contract to “perform” services).                                677 (Tex.App.—Houston [14th Dist.] 1987, no writ). This
                                                                  categorization of the claim is true though it is labeled an action
Although the participation agreement does not specifically        for negligent performance. Manzo, 731 S.W.2d at 677.
state that the management committee has “general
supervision” of the project, the agreement does specifically       [18] Austin's action is for damages for HL & P's failure to
provide that the management committee has the right to:           perform its duties as project manager with reasonable skill
                                                                  and care, a duty Austin asserts is impliedly imposed on HL &
  (1) resolve disputes among the participants arising under       P by the contract regardless of the parties' intention. The right
     the agreement (§ 9.3.5);                                     for which Austin seeks redress arose by virtue of the parties'
                                                                  agreement. We conclude that Austin's action is founded upon
  (2) review and act upon the project manager's
                                                                  contract. See Smith, 145 Tex. at 410, 198 S.W.2d at 736.
     recommendations concerning:

     a. the utilization of employees (§ 9.3.6.2),                 Section 21 of the participation agreement, the tortious
                                                                  conduct exculpatory clause, provides in pertinent part:
     b. the annual budget for capital expenditures (§ 9.3.6.3),
                                                                                *790 Participants shall have no
     c. the operating practices and procedures (§ 9.3.6.11);                   remedies against another Participant
                                                                               for tortious conduct arising out of the
  (3) remove the project manager with a simple majority vote                   ownership of the South Texas Project,
     (§ 25); and                                                               or any portion thereof, or out of
                                                                               Preconstruction Work, Construction
  (4) approve all agreements (§ 31).
                                                                               Work or Station Work except when the
Based on these contract provisions, we conclude that the                       claim results from Willful Action.
management committee's powers are not limited and that
                                                                  Because this exculpatory clause precludes only actions based
the management committee, not HL & P, maintains ultimate
                                                                  on tortious conduct, it is inapplicable in this situation.
control over the project.



                                                                          Duty of Implied Skill and Care Summation
                    Exculpatory Clause
                                                                  Because (1) the duty of reasonable care and skill is not implied
Austin contends that the trial court in its first opinion
                                                                  in all contracts, (2) the agreement does not provide HL & P
misconstrued the participation agreement because the
                                                                  with independent contractor status or state that HL & P is
participation agreement's exculpatory clause does not absolve
                                                                  responsible for results obtained, (3) it is not necessary to infer
HL & P of its implied duty to use skill and care. Austin
                                                                  the duty to carry out the contract's full purpose, (4) the limited
argues that its claim against HL & P for mismanagement is
                                                                  use of “best judgment” does not necessarily imply a general
a contract claim, not a claim for “tortious conduct.” Austin
                                                                  duty of reasonable skill and care, (5) HL & P is motivated
further argues that the exculpatory clause is too vague to be
                                                                  by self-interest, and (6) the management committee maintains
enforceable.
                                                                  ultimate control over the project, the trial court did not err
                                                                  when it sustained HL & P's special exceptions and struck


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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


Austin's cause of action alleging that HL & P had breached         [19] [20] [21] To get a reversal of judgment based on
its duty implied in law to perform its obligations as project     the trial court's error in admitting or excluding evidence,
manager under the participation agreement with skill and          the complaining party must show that (1) the trial court
care. We overrule Austin's first point of error.                  committed an error and (2) the error was reasonably
                                                                  calculated to cause and probably did cause rendition of an
                                                                  improper verdict. Gee v. Liberty Mut. Fire Ins. Co., 765
                                                                  S.W.2d 394, 396 (Tex.1989). Further, the party must show
                         HEARSAY
                                                                  that the whole case turned on the admission of the unexcluded
In its fourth point of error, Austin contends that the trial      evidence. Shenandoah Assocs. v. J & K Properties, 741
court erred when it overruled Austin's hearsay objection to the   S.W.2d 470, 490 (Tex.App.—Dallas 1987, writ denied).
admission of three newspaper articles. Austin argues that:        When a trial court gives an instruction that limits the
                                                                  purpose for which the jury can consider the evidence, this
  (1) the articles were relevant only if the statements made      Court must assume that the jury properly followed the trial
  by the officials were true,                                     court's *791 instruction. Turner, Collie & Braden, Inc. v.
                                                                  Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). The
  (2) the articles allowed the jury to infer that the reporter    erroneous admission of evidence that is merely cumulative
  believed the statements, which belief may have been             of properly admitted evidence is harmless error. McInnes v.
  erroneous,                                                      Yamaha Motor Corp., 673 S.W.2d 185, 188 (Tex.1984), cert.
                                                                  denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985).
  (3) HL & P's repeated references to and quotations from the
                                                                  To make this determination, this Court must review the entire
  articles, during jury argument, established harm and caused
                                                                  record. Gee, 765 S.W.2d at 396.
  the probable rendition of an improper verdict.

                                                                   [22] [23] [24] [25] Hearsay is an out-of-court statement
HL & P contends that it offered the newspaper articles to show
                                                                  offered as evidence to prove the truth of the matter
that the information Austin denied receiving was available in
                                                                  asserted. TEX.R.CIV.EVID. 801(d); Matter of Honsaker,
the city's newspapers at the relevant times. HL & P claims that
                                                                  539 S.W.2d 198, 201 (Tex.Civ.App.—Dallas 1976, writ ref'd
the articles were not hearsay because they were admitted to
                                                                  n.r.e.). Generally, Texas courts consider newspaper articles
show that Austin was on notice about the project's problems
                                                                  inadmissible hearsay. Deramus v. Thornton, 160 Tex. 494,
and to show the state of the public's knowledge in the City
                                                                  505, 333 S.W.2d 824, 831 (1960); Sherrill v. Estate of
of Austin, not to prove the truth of the matters asserted in
                                                                  Plumley, 514 S.W.2d 286, 290 (Tex.Civ.App.—Houston [1st
the articles. HL & P argues that (1) during voir dire and in
                                                                  Dist.] 1974, writ ref'd n.r.e.); Hearn v. Covington, 22 S.W.2d
its opening statement, Austin told the jury that it intended to
                                                                  1073, 1073 (Tex.Civ.App.—Beaumont 1929, no writ). When
offer evidence about the state of public knowledge in the city,
                                                                  a party offers a statement simply to show that it was made
(2) Austin fulfilled this promise through the presentation of
                                                                  rather than to show its truth or falsity, however, the hearsay
many witnesses who claimed not to have known information
                                                                  rule does not bar its admission. Pope v. Darcey, 667 S.W.2d
about the project and who testified that had HL & P made
                                                                  270, 273 (Tex.App.—Houston [14th Dist.] 1984, writ ref'd
the information available they would have acted differently,
                                                                  n.r.e.). Further, newspaper articles not offered for the truth
(3) HL & P used two of the articles to put in context Austin's
                                                                  of the matters asserted but used merely to show notice of
mayor's testimony about the statements she made to the
                                                                  those matters are not hearsay. See Hiram v. United States,
Austin public following the airport meeting, and (4) any error
                                                                  354 F.2d 4, 7 (9th Cir.1965). The hearsay rule also does not
in these articles' admission was harmless because the articles'
                                                                  bar the admissibility of news reports used to show public
contents were cumulative of other evidence.
                                                                  perceptions of the subject matter covered by the articles.
                                                                  See Tejas Gas Corp. v. Herrin, 705 S.W.2d 177, 180–81
For the reasons discussed below, we overrule Austin's fourth
                                                                  (Tex.App.—Texarkana 1985), rev'd on other grounds, 716
point of error.
                                                                  S.W.2d 45 (Tex.1986); Lone Star Gas Co. v. Smith 405
                                                                  S.W.2d 238, 239 (Tex.Civ.App.—Waco 1966, no writ); King
                                                                  v. City of Dallas, 374 S.W.2d 707, 711–12 (Tex.Civ.App.—
                    Standard of Review                            Dallas 1964, writ ref'd n.r.e.); see also Democratic Party v.
                                                                  National Conservative Political Action Comm., 578 F.Supp.



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


797, 829 (E.D.Pa.1983), aff'd in part and rev'd in part on            If the court committed error by allowing the introduction
other grounds, 470 U.S. 480, 105 S.Ct. 1459, 84 L.Ed.2d 455           of this article, the error was harmless because this evidence
(1985).                                                               merely was cumulative of evidence admitted afterward.
                                                                      McInnes, 673 S.W.2d at 188. HL & P later introduced
                                                                      and read, without objection, most of a memo Hancock sent
                                                                      Austin's city manager responding to his request for further
                  “Nuclear woes muffled?”
                                                                      information on the November 30 article. Other than the
                                                                      quotations, the memo contained the same information as the
                AUSTIN AMERICAN                                       article about the council's accusations.
            STATESMAN, November 30, 1978
                                                                      Because the trial court limited the use of the article to show
 [26] HL & P first discussed the November 30, 1978                    that the city council had made accusations against Hancock,
newspaper article during the cross-examination of R.L.                and we assume that the jury followed the court's instruction,
Hancock, Austin's representative on the management                    the article was not barred by the hearsay rule and the trial
committee. The article discussed various problems at the              court did not err when it allowed the article's admission. If
project and alleged that Hancock did not timely relay the             the hearsay rule, however, did bar the article's admission, the
information he received concerning those problems to the              error was harmless because the evidence was cumulative of
city council. The article included quotations from several            other evidence admitted without objection.
Austin City Council members, listed the problems, and
included Hancock's explanations for why he had limited the
information he relayed concerning those problems.
                                                                                   “Council unimpressed by report
Austin objected to this article's introduction, arguing that                       after HL & P briefing on STNP”
the headline and the quotations contained in the article were
hearsay. HL & P responded that it was introducing the article                    DAILY TEXAN, November 21, 1978
only to show that accusations were made against Hancock and
the gravity of those accusations, not to show that any of the          [27] HL & P introduced the November 21, 1978 newspaper
statements in the article were in fact accurate. The court at first   article during its cross-examination of Carole McClellan
overruled the objection, but later sustained a similar objection      Rylander, Austin's mayor in 1978. The article discussed the
and instructed the jury that the statements in the article, made      briefing that Austin City Council members received from HL
by persons other than Hancock, were not admitted for the              & P at the meeting at the airport in Houston a few days
truth of the statements, but only to show that the statements         earlier. The article included quotations from Rylander and
were made and that the matter had the attention of the city           other council members and summarized HL & P's statements
council. HL & P questioned Hancock further about whether              at the airport meeting. Further, it conveyed that, despite HL
the article made accusations that he did not inform Austin's          & P's statements at the airport meeting, Austin's council
City Council about the problems at the project. HL & P did            members continued to have questions about the project's cost
not refer to or question Hancock about any specific quotation         and schedule.
in the article.
                                                                      HL & P introduced the article in response to Rylander's
HL & P stated that its intention in introducing the article           statement that she would have to look specifically at the
was to show that Austin's City Council had made accusations           clippings from that time to see what she had said to the
against Hancock and not to show the article's truth or falsity.       public upon her return from the meeting in Houston. Austin
The hearsay rule, therefore, did not bar the article's admission.     immediately objected to the article's admission on hearsay
Pope, 667 S.W.2d at 273. Further, the trial court instructed the      grounds. The trial court sustained the objection and instructed
jury to consider the article only for that purpose. We assume         the jury that the newspaper article was not admitted for the
that the jury followed the instruction. *792 Brookhollow,             truth of any matters stated in it, but only for the purpose
642 S.W.2d at 167. Austin points to no evidence showing that          of showing what the discussion was in the City of Austin
the jury failed to follow the court's limiting instruction.           at the time the account was published. HL & P continued
                                                                      questioning Rylander about specific quotes she had allegedly
                                                                      made in the article and read a portion of the article to the


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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


jury. Austin again objected complaining, “[T]his has nothing
to do with any discussion that's taken place in Austin.” The         Q: Still having troubles between the City Council and the
trial court overruled Austin's objection. HL & P continued             representative to the management committee on the City
questioning Rylander, limiting itself to the portion of the            Council complaining that they never got the word on
article read to the jury and Rylander's quotations. In its             what was going on down at the South Texas Project; is
jury argument, HL & P repeated some of Rylander's alleged              that correct, Mayor?
quotations from the article. HL & P made no reference to
                                                                     A: I was not there. I can't make an assumption that this
quotations made by the other city council members.
                                                                       reporter accurately portrayed what happened.

HL & P introduced the November 21 newspaper article                  Q: Well, right next to this picture of Mr. Hancock, Mr.
to show what Austin's citizens were reading at that time               Hancock is quoted as saying, R.L. Hancock says the City
concerning the project. The hearsay rule, therefore, did not           Manager's office should pass news to the council. Is that
bar the article's admission. See Tejas Gas Corp., 705 S.W.2d           right, sir?
at 180–81. The trial court instructed the jury to consider
the article only for that purpose, and we assume the jury            A: That's what that says.
followed that instruction. Brookhollow, 642 S.W.2d at 167.
                                                                   HL & P asked no further questions concerning this article nor
The evidence does not show that HL & P went beyond its
                                                                   made any further references to it.
stated purpose or that the jury failed to follow the court's
limiting instruction. Additionally, the article summarized HL
                                                                   When HL & P introduced the November 21 and 30,
& P's statements at the airport meeting, a transcription of
                                                                   1978 newspaper articles, Austin requested and received an
which Austin introduced during its direct examination of
                                                                   instruction to the jury to consider those articles only for the
Rylander. Because the trial court limited the use of the article
                                                                   limited purpose of showing what the discussion was in the
to show what Austin's citizens were reading at the time, and
                                                                   City of Austin at the time the account was published. Austin
we assume the jury followed that instruction, the article was
                                                                   did not request a limiting instruction either at the time HL &
not barred by the hearsay rule and the trial court did not
                                                                   P introduced this newspaper article or at pretrial.
err when it allowed the article's admission. If the court did
err in allowing the introduction of this article, the error was
                                                                   When the jury should consider the tendered evidence for
harmless since the evidence was cumulative of other evidence
                                                                   only one purpose, it is the opponent's burden to secure a
admitted without objection.
                                                                   limiting instruction. Absent such a request, the admission of
                                                                   the evidence without limitation is not a ground for complaint
                                                                   on appeal. TEX.R.CIV.EVID. 105(a); Larson v. Cactus Util.
             *793 “City officials delayed telling                  Co., 730 S.W.2d 640, 642 (Tex.1987).
               council about Nuke troubles”
                                                                   Because Austin did not request a limiting instruction, it
AUSTIN AMERICAN STATESMAN, January 31, 1982                        waived its right to complain. Assuming that Austin did
                                                                   not waive its right to complain, any error was harmless.
 [28] HL & P introduced the January 31, 1982 newspaper             There were two previous limiting instructions given with the
article during its examination of Lee Cooke, Austin's mayor        November 21 and 30 newspaper articles and the witness's
at the time of trial and a former Austin City Council member.      testimony accompanying the introduction of the article
The article discussed the communication problems among             questioned the article's accuracy. We hold that the lack of a
Hancock, Austin's City Manager's office, and Austin's City         limiting instruction did not amount to such a denial of Austin's
Council. It included quotations from Hancock, Rylander, and        rights as was reasonably calculated to cause and probably
other Austin officials.                                            did cause the rendition of an improper judgment in this case.
                                                                   TEX.R.APP.P. 81(b)(1).
After HL & P read the article's headline to Cooke and
commented that Hancock's picture accompanied the article,
the following exchange occurred:
                                                                                       Hearsay Summation




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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


The trial court admitted the November 21 and 30 newspaper           Store No. 7441 v. Trotti, 677 S.W.2d 632, 636 (Tex.App.—
articles for the limited purpose of showing that the statements     Houston [1st Dist.] 1984), writ ref'd n.r.e. per curiam, 686
were made and for the limited purpose of showing the state of       S.W.2d 593 (1985). To determine whether an alleged error in
public knowledge in the City of Austin at the relevant times.       the jury charge is reversible, we must consider the pleadings,
Thus, the articles were not hearsay. When Austin did not            the evidence presented, and the charge in its entirety. Island
request a limiting instruction with the January 31 newspaper        Recreational Dev. Corp. v. Republic of Tex. Sav., 710
article, it waived its right to complain about its admission in     S.W.2d 551, 555 (Tex.1986). We will deem an alleged error
its entirety. Alternatively, if Austin did not waive its right to   reversible only if, when viewed in light of the totality of the
complain, any error in admitting the article was harmless.          circumstances, it amounted to such a denial of the rights of the
                                                                    appellant as was reasonably calculated to cause and probably
Because Austin waived its right to complain of the admission        did cause rendition of an improper judgment. TEX.R.APP.P.
of the January 31 newspaper article and because we assume           81(b)(1); Island Recreational Dev., 710 S.W.2d at 555;
that the jury followed the trial court's instructions and           Geotech Energy v. Gulf States Telecommunications & Info.
appropriately limited its consideration of the remaining            Sys., Inc., 788 S.W.2d 386, 390 (Tex.App.—Houston [14th
articles, the hearsay rule did not bar the articles' admission.     Dist.] 1990, no writ).
Therefore, the trial court did not err in allowing the articles'
admission into evidence. We overrule Austin's fourth point of
error.
                                                                    HL & P's Contractual Duty to Make Recommendations

                                                                     [32] In its second point of error, Austin contends that the
                   *794 JURY CHARGE                                 trial court erred when it refused to include section 10.2.7
                                                                    of the participation agreement in the definition of HL & P's
In its second and third points of error, Austin contends that an    duties to inform. Austin argues that, under section 10.2.7, HL
erroneous jury charge caused the jury to render an improper         & P had a duty to make competent recommendations to the
verdict. Austin argues that the trial court erred when it refused   management committee. Austin asserts that it supported its
to include (1) section 10.2.7 of the participation agreement        request to include section 10.2.7 with written pleadings and
in the definition of HL & P's duties to inform and (2) a            proof that HL & P did not make competent recommendations
“substantial factor” question or instruction in the causation       concerning (1) the choice of a nuclear steam supply system,
issue.                                                              (2) the selection of Brown & Root, and (3) the decision to
                                                                    start safety-related construction.

                                                              HL & P argues that jury question one dealt with whether HL
                     Standard of Review
                                                              & P provided information to the management committee and
 [29] [30] [31] Under the Texas Rules of Civil Procedure, that the duty to make recommendations did not fall within the
the trial court must, whenever feasible, submit the cause     participation agreement's definition of information. HL & P
upon broad-form questions and must give proper instructions   further argues that Austin never objected to the omission of
and definitions to enable the jury to render a verdict.       section 10.2.7 in the pretrial opinions listing the participation
TEX.R.CIV.P. 277. Explanatory instructions are the tools that agreement sections imposing informational duties.
aid the jury in rendering a just and proper verdict. The trial
court should submit instructions only when it determines that       The court limited its charge to those sections of the
the instructions will help the jury to understand the meaning       participation agreement that it determined mandated HL &
and effect of the law and the presumption created thereby.          P to provide information. The charge included the following
Texaco Inc. v. Pennzoil Co., 729 S.W.2d 768, 819 (Tex.App.          definition and instruction:
—Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dismissed,
                                                                      ‘Information required by the Participation Agreement’
485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988). The
                                                                      means the information that HL & P was required to supply
complaining party must tender to the court in writing a
                                                                      to the Participants by the following provisions of the
substantially correct definition or instruction. TEX.R.CIV.P.
                                                                      Participation Agreement.
278. The trial court has wide discretion to determine the
sufficiency of definitions and instructions. K–Mart Corp.



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City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


                                                                              Work and Station Work, or any phases
  10.2 The Project Manager for all aspects of the South                       thereof.
  Texas Project, except the construction, operation, and
  maintenance of the Construction Power Line, shall:             (Emphasis added.) Although section 10.2.7 states that
                                                                 the project manager shall make recommendations to the
     10.2.3 Supply the Participants with copies of all studies   management committee, we must read that section in
     made, license and *795 permit applications filed, and       conjunction with section 9.3.6, which sets forth the
     licenses and permits obtained;                              management committee's responsibility concerning the
                                                                 recommendations. Section 9.3.6 further defines and limits
     10.2.5 Promptly supply the Participants with
                                                                 the project manager's recommendation duties to the areas
     information on major matters and significant factors
                                                                 of insurance, employee utilization, budgets, and the making
     which affect construction and operating schedules;
                                                                 of policies and procedures for the plant's construction,
     10.2.6 Provide the Management Committee and any             maintenance, and operation. When sections 9.3.6 and 10.2.7
     committee created by it with all necessary records          are read together, it is clear that the language “but not
     and information pertaining to matters within its [the       limited to” in section 10.2.7 refers back to section 9.3.6. The
     Management Committee's] designated responsibilities.        first subsection under 9.3.6 specifically refers to insurance
                                                                 coverage. The remaining fifteen subsections define the other
     10.2.10 Keep the Participants fully and promptly advised    areas on which the management committee expected HL & P
     of material changes in conditions or other material         to make recommendations.
     developments affecting the performance of its [HL &
     P's] responsibilities.                                      Austin's proposed instruction implied a general duty by HL
                                                                 & P to make recommendations. The proposed instruction,
  In answering question 1, 2, and 3, you should consider only    however, did not properly place HL & P's duty in context.
  HL & P's duty to supply the information required by the        When section 10.2.7 is read in its entirety and in conjunction
  foregoing provisions of the Participation Agreement; do        with section 9.3.6, we conclude that HL & P's duty to make
  not consider any other duties that HL & P may have had         recommendations was limited to the sixteen specific areas set
  as project manager.                                            forth in section 9.3.6. Austin's proposed instruction, therefore,
                                                                 would not have aided the jury in understanding HL & P's duty
Austin requested that the trial court include a portion of
                                                                 to supply Austin with information or the law or in rendering
section 10.2.7 as follows:
                                                                 a just and proper verdict. See Texaco, 729 S.W.2d at 819–20.
             10.2.7 Prepare recommendations                      Because Austin's proposed instruction would not have aided
             covering the matters which are to                   the jury in understanding the law or in rendering its verdict,
             be reviewed and acted upon by the                   the trial court did not err in refusing to submit the instruction
             Management Committee.                               to the jury. We overrule Austin's second point of error.

The trial court refused Austin's request.

In its entirety section 10.2.7 reads as follows:                       “But For” v. “Substantial Factor” Causation

                                                                  [33] In its third point of error, Austin contends that the trial
             10.2.7 Prepare recommendations
                                                                 court erred in submitting the question on causation. Austin
             covering the matters which are to
                                                                 argues that the language “in reasonable probability” that the
             be reviewed and acted upon by
                                                                 trial court used in jury question two erroneously applied
             the Management Committee and any
                                                                 “but for” causation to the question of increased costs. Austin
             committee created by the Management
                                                                 asserts that the applicable burden of proof in contract cases
             Committee for the purpose of
                                                                 is “substantial factor” causation and that “but *796 for”
             reviewing such recommendations,
                                                                 causation requires a higher burden of proof.
             including, but not limited to, insurance
             coverages to be obtained during the
                                                                 To show liability for damages in a breach of contract case,
             periods covered by and with respect to
                                                                 the plaintiff must show that the defendant's breach was
             Preconstruction Work, Construction



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          16
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


a “substantial factor” in causing the injury. 5 CORBIN,           Austin's proposed instruction would not have aided the jury
CORBIN ON CONTRACTS § 999 (1964). The plaintiff                   in understanding the law or in rendering its verdict, the trial
need not show the proportionate fault of each wrongdoer.          court did not err when it refused Austin's requested question
White Budd Van Ness v. Major–Gladys Drive, 798 S.W.2d             and instruction. We overrule Austin's third point of error.
805, 819–20 (Tex.App.—Beaumont 1990, writ dism'd), cert.
denied, 502 U.S. 861, 112 S.Ct. 180, 116 L.Ed.2d 142
(1991); Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933, 938
                                                                                 MOTION FOR NEW TRIAL
(Tex.App.—Dallas 1987, writ denied).
                                                                  In its fifth and sixth points of error, Austin contends that the
Question two of the court's jury charge read as follows:          trial court erred when it overruled Austin's motion for new
                                                                  trial because the jury's findings that Austin did not incur any
             Were any costs incurred in the
                                                                  costs as a result of HL & P's failure to provide information and
             construction of [the project] that,
                                                                  that any deceptive trade practice or unconscionable conduct
             in reasonable probability, would not
                                                                  by HL & P did not adversely affect Austin are against the great
             have been incurred if HL & P had
                                                                  weight and preponderance of the evidence. Austin argues that
             furnished to the Participants all the
                                                                  (1) starting safety-related construction too soon caused cost
             information as and when required by
                                                                  overruns, (2) safety-related construction started too soon on
             the Participation Agreement?
                                                                  the project, (3) HL & P knew that the project was not ready
The jury responded “No.” No definition or instruction             to start safety-related construction in April 1976, (4) HL &
concerning causation accompanied this question.                   P misinformed Austin about the project's readiness to start
                                                                  safety-related construction, and (5) HL & P's misinformation
Austin requested that the trial court include the following       caused cost overruns on the project that would otherwise not
question in the jury charge:                                      have been incurred.

             Was HL & P's failure to supply
             information to Austin, if you have
                                                                                      Standard of Review
             found that it did so fail, a substantial
             factor in increasing the cost of the                  [34] [35] [36] When determining a factual sufficiency
             South Texas Project?                                 point of error, this Court must consider and weigh all the
                                                                  evidence in the case. It should set aside the verdict and
The trial court refused Austin's request. Austin also requested
                                                                  remand the cause for a new trial only if it concludes that
that the trial court include the following instruction in
                                                                  the verdict is so against the great weight and preponderance
connection with question two and/or three:
                                                                  of the evidence as to be manifestly unjust, regardless of
             HL & P's failure(s), if any, to supply               whether the record contains some evidence of probative
             information caused an increase in cost               force in support of the verdict. Pool v. Ford Motor Co.,
             if they were a substantial factor in                 715 S.W.2d 629, 635 (Tex.1986). This Court, however, is
             bringing about that result.                          not a factfinder. We do not *797 pass upon the witnesses'
                                                                  credibility or substitute our judgment for that of the trier of
The trial court also refused this request.                        fact, even if there is conflicting evidence that would support a
                                                                  different conclusion. Harco Nat'l Ins. Co. v. Villanueva, 765
Austin fails to cite, and we cannot find, any authority for       S.W.2d 809, 810 (Tex.App.—Dallas 1988, writ denied). The
its propositions that the term “in reasonable probability” has    existence of some evidence of probative force in support of
the same meaning as “but for” causation or that the precise       the verdict, however, does not mean that the verdict is not
term “substantial factor” must appear in the jury issue. On its   contrary to the overwhelming weight of all the evidence. In
face, the issue submitted by the trial court does not impose a    re King's Estate, 150 Tex. 662, 664–65, 244 S.W.2d 660, 661
stricter standard than Austin's requested issue or instruction.   (1951).
No significant difference exists between the submitted issue
and the requested issue or instruction. Because the submitted
issue imposed the correct standard concerning causation, and



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           17
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


                                                                  involving waste and inefficiency.” “In truth, 60 percent of
                                                                  the engineering had not been completed by the latter part of
 Failure to Provide Information—Jury Question No. 2
                                                                  1975 but rather, probably not in excess of five to ten percent
                                                                  of the engineering necessary to support construction had
            Evidence Contrary to Jury Finding                     been completed and the percentage may have been ...
                                                                  materially smaller.”
 [37] In its fifth point of error, Austin contends that the
following evidence is contrary to the jury's finding that HL      (6) The 1977, 1978, and 1979 Management Analysis
& P's failure to furnish information to Austin about the          reports concluded that the project began safety-related
inadequacy of Brown & Root's engineering to support safety-       construction too soon.
related construction did not cause any increase in the cost of
the project:                                                      (7) HL & P discussed for hours with Brown & Root
                                                                  the decision whether to start safety-related construction in
  (1) Robert Allen, a consultant for Austin and former head       1976 for hours with Brown & Root and knew that it was
  of power plant construction for Bechtel, testified that, when   a calculated risk.
  nuclear projects begin safety-related construction, costs
  tend to increase dramatically.                                  (8) Brown & Root started safety-related construction only
                                                                  at HL & P's request.
  (2) Because there were too few engineering drawings
  to support the safety-related construction, work was            (9) Despite knowing that only sixty percent of the
  performed out of sequence, which contributed to                 engineering was complete, HL & P recommended to
  inefficiencies, rework, loss of efficient use of personnel,     the management committee that safety- *798 related
  increased costs, and schedule delays.                           construction begin on the project.

  (3) When HL & P received the project's construction             (10) At the March 12, 1976 management committee
  permit in 1976, structural engineering could not support          meeting, Brown & Root, when asked whether
  construction.                                                     engineering could support the project construction
                                                                    schedule, responded “Hell, yes,” even though it knew
  (4) All of the participants, other than HL & P, hired Gibbs       that response was untrue.
  and Hill, a well-recognized A/E, to study the baseline
  estimate prepared by the task force composed of HL & P,         (11) If Austin had known that Brown & Root's engineering
  Brown & Root, and Management Analysis. The Gibbs and              was inadequate to support the safety-related construction
  Hill study reported, “At the time construction was initiated,     in April 1976, Austin would have recommended either
  engineering was behind schedule in issuing construction           that the work on the project stop until Brown & Root's
  drawings and subsequent issues were not far enough ahead          engineering could catch up with construction and find
  of construction needs to support the ongoing construction         solutions for and fix the problems or that the project be
  program efficiently.”                                             canceled.

  (5) HL & P's sworn answers to interrogatories sent by           (12) If the other participants had indicated that they were
  Brown & Root during the Brown & Root litigation read,             not ready to start safety-related construction or were not
  “HL & P believes that Brown & Root construction went              willing to vote for it, then HL & P would not have been
  to the field too early.” “The number of design drawings           able to start safety-related construction.
  prepared was totally inadequate to support construction
                                                                  (13) Each day the project was delayed, the project's cost
  efficiently. If candid reports concerning the amount of
                                                                    increased by $750,000 based on the carrying costs of
  engineering completed at the end of 1975 had been given
                                                                    the investment, which included interest on the money
  to the management committee, it is likely that construction
                                                                    borrowed, the cost of the support staff, and the cost of
  would not have started in the spring of 1976 and a
                                                                    keeping the construction force on the job, and the cost
  key project mistake would have been avoided.” “HL &
                                                                    of replacement power.
  P believes the fact that [Brown & Root] engineering
  and design work was never able to support construction,
  inevitably caused project work to proceed in a manner



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         18
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)




                                                                       *799 (5) The decision to start safety-related construction
            Evidence Supporting Jury Finding                          was made in September 1975 when the management
                                                                      committee was reviewing the utilization of the limited
The following evidence supports the jury's finding:
                                                                      work authorization permit.
  (1) Donley Jordan, HL & P's chief executive officer
                                                                      (6) No inefficient cost, inordinate amount of rework, or
  and chairman of the board, testified, “Everybody in the
                                                                      inordinate amount of work performed out of sequence was
  Houston Lighting & Power Company organization who
                                                                      a result of beginning the safety-related construction work
  had anything to do with the South Texas Project felt it
                                                                      in April 1976.
  was the right thing to do to go forward with safety related
  construction, and that there was no undue risk involved in          (7) Based on the critical path analysis, work on the project
  it.” He also stated that no one at Brown & Root told HL & P         progressed at a better than average or at an average rate
  that Brown & Root believed it was extremely risky to begin          for comparable plants built during that time until late 1979.
  safety-related construction in spring 1976. He also testified       This indicates that the engineering was adequate to support
  that HL & P took the position during the Brown & Root               construction up to 1980.
  litigation that starting safety-related construction was a key
  project mistake because at that time no one knew what it            (8) Darrell Halligan, Bechtel's vice president for
  would take to complete a nuclear power plant and that HL            the project's operations, testified that the amount of
  & P had asked its lawyers to draft a petition as broad as           engineering that Brown & Root had available prior to
  they thought the participants had a chance to prove. He also        beginning safety-related construction was comparable to
  stated that, looking back, he knew of no one who has done a         other nuclear projects that he had supervised.
  detailed study on the project that said that the project should
  not have started safety-related construction at that time. He       (9) Jack Mooney, Brown & Root's engineering manager
  further testified that at the time the decision was made to         and the person who told the participants at the March 12,
  start safety-related construction, all the participants had the     1976 management committee meeting that Brown & Root
  same information as HL & P.                                         was ready to begin safety-related construction, testified
                                                                      that there were adequate engineering drawings available
  (2) Ed Turner, HL & P's general manager of power                    to start safety-related construction in April 1976. He also
  plant engineering and construction for the project, and             testified that his speech to the management committee and
  Ralph Hernandez, an HL & P engineer, testified that                 the decision to start safety-related construction was made
  they had no concern in March 1976 about Brown &                     by him without influence from either Brown & Root's
  Root's engineering being adequate to support safety-related         management or HL & P personnel.
  construction. Hernandez also testified that sufficient
  engineering drawings were available and that no problems            (10) Robert Traylor, Management Analysis's cofounder,
  occurred in 1977 through 1980 that resulted from the                  testified that his company found no cost or schedule
  failure to have sufficient engineering drawings complete at           problems that resulted from beginning safety-related
  the time safety-related construction began in April 1976.             construction in 1976.

  (3) Brown & Root did not tell HL & P that its engineering         After considering all of the evidence, we conclude that the
  was inadequate to support safety-related construction. At         jury's finding that any failure to provide information did not
  the April 1976 management committee meeting, Brown                cause excess project costs is not against the great weight
  & Root told HL & P that engineering was sixty-three               and preponderance of the evidence. The evidence, therefore,
  percent complete and purchasing was twenty-two percent            supports the jury's finding. Because the jury's finding that any
  complete.                                                         failure to provide information did not cause excess project
                                                                    costs is not against the great weight and preponderance of the
  (4) The project met every scheduled construction activity         evidence, the trial court did not err when it overruled Austin's
  in 1976. These acts could not have occurred without having        motion for new trial. We overrule Austin's fifth point of error.
  sufficient engineering drawings available.                        Because of our disposition of Austin's fifth point of error,
                                                                    we need not address HL & P's first conditional cross-point




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              19
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


requesting this Court to affirm the trial court's judgment as to        Knox Broom, one of Brown & Root's senior vice
Austin's breach of contract claim.                                      presidents, at the September 21, 1978 management
                                                                        committee meeting, that the engineering drawings were
                                                                        only eight percent complete at the time Brown & Root
                                                                        started safety-related construction, thus propagating
                   Austin's DTPA Claims
                                                                        a myth, which others repeated without performing
In its sixth point of error, Austin argues that HL &                    additional analysis or studies, that Brown & Root was
P's unconscionable conduct adversely affected Austin. On                not prepared to start safety-related construction when it
appeal, Austin appears to rest its DTPA claim solely on HL &            did.
P's conduct in relation to the decision to begin safety-related
                                                                     (2) Brown & Root's statement in 1976 that sixty percent of
construction in 1976.
                                                                        the engineering was complete was accurate considering
                                                                        the information available at that time. Brown & Root
 [38] [39] An “unconscionable action or course of action”
                                                                        based its statement on an estimate that the project would
means an act that (1) takes advantage of a consumer's lack of
                                                                        take two million engineering man-hours to complete and
knowledge to a grossly unfair degree or (2) results in a gross
                                                                        that Brown & Root had used sixty percent of those man-
disparity between the value received and consideration paid.
                                                                        hours at that time. By 1978, the estimate of engineering
TEX.BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987);
                                                                        man-hours grew to twenty million. In hindsight, this
Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex.1985). Taking
                                                                        meant that Brown & Root had actually completed less
advantage of a consumer's lack of knowledge to a grossly
                                                                        than eight percent of the engineering before beginning
unfair degree requires a showing that the resulting unfairness
                                                                        safety-related construction. Broom based his statement
was glaringly noticeable, flagrant, complete, and unmitigated.
                                                                        on the revised engineering man-hour estimate.
Chastain, 700 S.W.2d at 584. A gross disparity between
value received and consideration paid means a glaring and            (3) Kleinrath reached his conclusion that Brown &
flagrant disparity. Id. at 583. A consumer's proof of gross             Root's engineering was inadequate to start safety-related
unfairness and gross disparity does not require proof that the          construction based on only four or five engineering
defendant acted intentionally, knowingly, or with conscious             drawings provided by Austin's lawyers.
indifference. Chastain, 700 S.W.2d at 583.
                                                                     (4) Mooney, Brown & Root's engineering manager in April
                                                                        1976, testified that neither Management Analysis nor
                                                                        Gibbs and Hill ever discussed with him whether Brown
            Evidence Contrary to Jury Finding
                                                                        & Root's engineering was sufficient to begin safety-
Austin relies on the same evidence set forth above under its            related construction. Prior to testifying, he reviewed all
fifth point of error to *800 support its argument here that the         the engineering drawings produced by Brown & Root
jury's finding that HL & P's unconscionable conduct did not             up to March 12, 1976. By March 12, 1976, almost 700
affect Austin was against the great weight and preponderance            engineering drawings were complete or issued.
of the evidence.
                                                                     (5) Ralph Hernandez, an HL & P engineer whose
                                                                        responsibilities in 1976 included providing HL & P with
                                                                        an overview of Brown & Root's structural engineering,
             Evidence Supporting Jury Finding                           reviewed the drawings available before April 1976.
                                                                        Based on this review, he testified that engineering was
 [40] The following evidence supports the jury's finding that           sufficient to support construction. He further testified
HL & P did not take advantage of Austin to a grossly unfair             that engineering did not fall behind construction until the
degree:                                                                 first quarter of 1978.
  (1) Management Analysis did not base its statement that          After a review of the evidence, we conclude that (1) the jury
     Brown & Root began safety-related construction too            heard evidence that, at the time the decision was made to
     soon on the fact that there were an inadequate number         start safety-related construction, HL & P believed that Brown
     of engineering drawings or engineering studies. Rather,       & Root's engineering was sufficient to support safety-related
     Management Analysis repeated a statement made by              construction and (2) any statements HL & P made to that


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           20
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)


                                                                           the project over its useful lifetime, which includes
effect were not unconscionable in a manner that would take
                                                                           routine maintenance, operating personnel, and nuclear
unfair advantage of Austin. We further conclude that the true
                                                                           fuel; capital additions, which includes upgrading the
percentage of engineering drawings completed by Brown &
                                                                           plant and insuring continual compliance with quality and
Root in March 1976 could only be determined in hindsight at
                                                                           safety requirements; and the cost of decommissioning
the end of the project. HL & P had to base its decision on the
                                                                           the plant.
information available at the time.
                                                                        (6) Based on fuel savings and reliability only, the project's
The following evidence supports the jury finding that there                lifetime value to Austin exceeds its costs by $9.206
was not a gross disparity between the value of the plant that              billion ($357 million in 1989 dollars).
Austin received and the consideration it paid:
                                                                        (7) In addition to fuel and reliability savings, the project
  (1) Of the plants available for Austin to use to generate                also added diversity to the types of plants available to
     electricity, the project is the cheapest to operate. Utilities        Austin to generate electricity.
      *801 place into operation the cheapest plants first.
                                                                        (8) It would have cost Austin $432 million (in 1989 dollars)
  (2) In its 1973 generating plan, Austin determined that                  more to own and operate a coal plant over its lifetime.
     the cost of electric energy was the result of capital
     investment, fuel, maintenance, and operations. Its goals         After a review of the evidence, we conclude that the jury
     in its 1987 generating plan were to:                             could have found that the project's value to Austin exceeds
                                                                      Austin's share of the construction costs. Because the evidence
     —meet long-term customer demand;                                 shows that HL & P did not take advantage of Austin's
                                                                      lack of knowledge and that no disparity exists between the
     —provide electricity with adequate reliability;
                                                                      value Austin received and the consideration it paid, the jury's
     —minimize the cost of generating electricity to the rate         finding that no deceptive trade practice or unconscionable
     payers; and                                                      act by HL & P adversely affected Austin is not against the
                                                                      great weight and preponderance of the evidence. We overrule
     —diversify energy resources.                                     Austin's sixth point of error. Because of our disposition
                                                                      of Austin's sixth point of error, we need not address HL
  (3) Without the project, Austin would pay $40–$100
                                                                      & P's second cross-point concerning whether Austin is a
     million/year more to operate its system. Over the
                                                                      “consumer” as to HL & P as defined by the DTPA or whether
     project's lifetime, this adds up to an $11.6 billion savings
                                                                      HL & P is liable for any DTPA violations by Brown & Root.
     (represented to the jury as $2.5 billion in 1989 dollars).

  (4) Austin will experience savings as a result of the project's
     reliability. Reliability means the frequency with which                                 CONCLUSION
     outages will occur, the number of customers affected,
     and how long those outages will last. Without the                Because (1) the duty of reasonable skill and care is not implied
     project, these events will occur more frequently and be          in the participation agreement, (2) the newspaper articles are
     of longer duration. Austin's target energy reserve was           not hearsay, (3) the jury charge was proper, (4) the jury's
     twenty percent. Without the project, there will be several       findings are not against the great weight and preponderance of
     times that its reserve will fall below that number. The          the evidence, and (5) the trial court properly denied Austin's
     project's reliability value equals $6.7 billion ($1.2 billion    motion for new trial, the trial court committed no reversible
     in 1989 dollars).                                                errors. We overrule all of Austin's points of error.

  (5) Austin's cost to build and operate the project for              We affirm the trial court's judgment.
     a lifetime is $9.065 billion ($3.375 billion in 1989
     dollars). This amount includes: the amount that Austin
     will pay to service its debt; Austin's share of the total        All Citations
     capital cost to build the project, less Austin's share
                                                                      844 S.W.2d 773
     of the Brown & Root settlement; the cost to operate



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               21
City of Austin v. Houston Lighting & Power Co., 844 S.W.2d 773 (1992)




Footnotes
1     See Ferguson v. Williams, 670 S.W.2d 327, 331 (Tex.App.—Austin 1984, writ ref'd n.r.e.) (managing partner held not
      liable for mismanagement of a joint venture despite six specific acts of negligence); accord, Marcus v. Green, 13 Ill.App.3d
      699, 300 N.E.2d 512, 520 (1973) (partner responsible for violation of scaffolding safety statute entitled to indemnity from
      partnership as risk inherent in partnership business); Charlton v. Sloan, 76 Iowa 288, 41 N.W. 303, 304 (1888) (partner
      not charged with loss resulting from unwise lease); Hurter v. Larrabee, 224 Mass. 218, 112 N.E. 613, 614 (1916) (partner
      with duty to supervise books not charged when there was only “mere negligence” in failure of duty to supervise); Thomas
      v. Milfelt, 222 S.W.2d 359, 365 (Mo.App.1949) (partner not charged with losses unless they result from fraud, culpable
      negligence, or bad faith); J.E. Crosbie, Inc. v. King, 192 Okl. 53, 133 P.2d 543, 546 (1943) (partners assume risk of loss
      that comes from bad judgment); Knipe v. Livingston, 209 Pa. 49, 57 A. 1130, 1130 (1904) (deceased partner who had
      been lax in collecting accounts and had carried bad debts as assets was not charged with resulting losses); Binning v.
      Miller, 55 Wyo. 478, 102 P.2d 64, 76 (1940) (absent fraud, culpable negligence, or bad faith, cotenant who acted in good
      faith not liable for exercising poor judgment).


End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             22
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)
2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

                                                                    M.S. Ernst, Dallas City Attorney, Dallas, Janet Marie
                                                                    Spugnardi, City Attorney's Office, Irving, Jennifer Anne
                    2015 WL 2147986
                                                                    Richie, City of Waco Legal Serv. Dept., Waco, Jennifer
                 Supreme Court of Texas.
                                                                    Avalon Whit DeCurtis, Messer, Rockfeller & Fort, PLLC,
                City of Dallas, Petitioner,                         Marsha L. Foulks, Attorney at Law, Frisco, for Petitioner City
                            v.                                      of Dallas.
             TCI West End, Inc., Respondent
                                                                    Melissa Ann Johnson, Mitchell Madden, Thomas V. Murto
                                                                    III, Holmgren Johnson: Mitchell Madden, LLP, Robert B.
                No. 13–0795 | OPINION
                                                                    Gilbreath, Hawkins Parnell Thackston & Young LLP, Dallas,
                DELIVERED: May 8, 2015
                                                                    for Respondent TCI West End, Inc.
Synopsis
                                                                    Jarold Lee Apple, How Frels Rohde Woods & Duke, R.
Background: City brought action against developer for
                                                                    Michael Northrup, Cowles & Thompson, P.C., Dallas, for
demolishing a historic building in violation of city
                                                                    Amicus Curiae The National Trust for Historic Preservation.
ordinances and for fraud. Texas Historical Commission
(THC) intervened to recover damages for demolition of               Joe H. Thrash, Assistant Attorney General, Austin, for
historic structure without appropriate written permission           Intervenor Texas Historical Commission
from municipality. The 160th Judicial District Court, Dallas
County, No. 06–04868–H, Jim Jordan, J., entered judgment            H. Grady Chandler, Attorney at Law, Garland, for Other
on special jury verdict for city and THC in part, and granted       Interested Party Dorbet, Inc.
developer's motion for judgment notwithstanding the verdict
(JNOV) in part. The Dallas Court of Appeals affirmed in part,       Lawrence J. Friedman, Friedman & Feiger, LLP, Dallas, for
reversed in part, and rendered judgment, 407 S.W.3d 292.            Other Interested Party Weir Industries, Inc.
City's petition for review was granted.
                                                                    Opinion

                                                                    PER CURIAM
Holdings: The Supreme Court held that:
                                                                     *1 Section 54.012(3) of the Texas Local Government
                                                                    Code authorizes a municipality to pursue a civil action
[1] statutes authorizing municipalities to bring civil actions
                                                                    against a property owner to enforce an ordinance “for zoning
and to recover civil penalties for violations of ordinances
                                                                    that provides for the use of land or classifies a parcel of
provided City authority to bring action against developer, and
                                                                    land according to the municipality's district classification
                                                                    scheme.”TEX. LOC. GOV'T CODEE § 54.012(3). Despite
[2] statute authorizing municipalities to recover civil penalties
                                                                    section 54.012(3)'s clear and unambiguous language, the
for violation of ordinances applied to instances in which a
                                                                    court of appeals held that a municipality cannot pursue a civil
defendant violated an ordinance after receiving notice of an
                                                                    action under that statute for violations of “general zoning
ordinance's provisions or failed to take action necessary for
                                                                    ordinances regulating the use of land.” 407 S.W.3d 292,
compliance with the ordinance after receiving such notice.
                                                                    301 (Tex.App.–Dallas 2013). Because the court of appeals'
                                                                    holding is incompatible with the statute's plain language, we
Reversed and remanded.                                              reverse the court's judgment and remand the case to the court
                                                                    of appeals for further proceedings.

ON PETITION FOR REVIEW FROM THE COURT OF                            The City of Dallas contends that TCI West End, Inc.
APPEALS FOR THE FIFTH DISTRICT OF TEXAS                             (TCI) demolished a building located in a historic overlay
                                                                    district in violation of a city ordinance. See Dallas City
Attorneys and Law Firms                                             Ordinance No. 21391, as amended by Ordinance No. 22158,
                                                                    § 7.1 (requiring building owner, prior to demolishing or
Barbara E. Rosenberg, Christopher D. Bowers, James B.
                                                                    altering building located in historic overlay district, to apply
Pinson, Assistant City Attorneys, Christopher J. Caso, City
                                                                    for determination as to whether structure is “contributing
Attorney's Office, Melissa A. Miles, City of Dallas, Warren



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)
2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

structure” subject to strict demolition requirements); see          Section 54.012, which is located in chapter 54, subchapter
also id. at § 4 (incorporating chapter 51A of the Dallas            B of the local government code, authorizes a municipality
City Code); Dallas, Tex. City Code § 51A–4.501(a)–(p)               to pursue a civil action against a property owner to enforce
(regulating historic overlay districts). 1 Among other claims,      several categories of ordinances, including “an ordinance ...
the City sued TCI for civil penalties under section 54.017          for zoning that provides for the use of land or classifies
of the Texas Local Government Code, as authorized by                a parcel of land according to the municipality's district
section 54.012 of the code. SeeTEX. LOC. GOV'T CODEE §              classification scheme.” TEX. LOC. GOV'T CODEE §
54.012 (listing types of ordinances municipality can enforce        54.012. 3 The remaining provisions in subchapter B address
by civil action), .017 (authorizing civil penalties for ordinance   the rules, procedures, and relief available for a civil action
violations). Following a jury verdict in the City's favor, the      authorized by section 54.012. See id. §§ 54.013–.020.
trial court rendered judgment awarding the City $750,000 in         Among other available remedies, section 54.017 permits a
civil penalties.                                                    municipality to recover civil penalties, up to specified limits,
                                                                    upon proof that:
The court of appeals reversed, holding that sections 54.012
and 54.017 apply only to health and safety ordinances, not            (1) the defendant was actually notified of the provisions of
“general zoning ordinances regulating the use of land.” 407           the ordinance; and
S.W.3d at 301. In the alternative, the court held that the
                                                                      (2) after the defendant received notice of the ordinance
City presented no evidence that TCI was informed about the
                                                                      provisions, the defendant committed acts in violation of the
relevant ordinance provision before demolishing the building,
                                                                      ordinance or failed to take action necessary for compliance
as required to obtain civil penalties under section 54.017. Id.
                                                                      with the ordinance.
at 301. On rehearing, one justice dissented on both counts,
explaining that (1) sections 54.012 and 54.017 do not contain       Id.§ 54.017.
the health-and-safety limitation imposed by the court and (2)
sufficient evidence supported the jury's finding that TCI had      The court of appeals determined that all the provisions
actual notice of the ordinance provision before demolishing        in subchapter B, including sections 54.012(3) and 54.017,
the building. Id. at 302–05.                                       “relate only” to health and safety matters and thus do not
                                                                   apply to general zoning ordinances regulating the use of land.
 [1] Although other issues have been raised on appeal, the 407 S.W.3d at 301. The court further held that the City's
threshold issues are (1) whether sections 54.012(3) and            historic-district regulation does not qualify for enforcement
54.017 are limited to enforcement of “health and safety”           as a health-and-safety ordinance under subchapter B because
zoning ordinances; and (2) whether section 54.017 requires         its stated purpose is to “protect buildings of historical,
that actual notice be effected before violation of the applicable  cultural, and architectural significance” in the historic overlay
             2                                                     district. Id. (citing Dallas City Ordinance No. 21391, as
ordinance. These matters present questions of law that we
review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621,        amended by Ordinance No. 22158). As a result, the court
625 (Tex.2008).                                                    concluded that the ordinance can only be enforced under
                                                                   chapter 211 of the local government code, id. which governs
 *2 [2]        [3]    [4] Our primary objective in construing a municipal zoning and has a stated purpose of “promoting
statute is to give effect to the Legislature's intent as expressed the public health, safety, morals, or general welfare and
in the statute's plain language. TGS–NOPEC Geophysical Co.         protecting and preserving places and areas of historical,
v. Combs, 340 S.W.3d 432, 439 (Tex.2011). We consider the          cultural, or architectural importance and significance,”TEX.
statute as a whole, rather then viewing individual provisions      LOC. GOV'T CODEE § 211.001.
in isolation, and presume the Legislature selected the statute's
language with care, choosing each word for a purpose and           To support this construction of subchapter B, the court of
purposefully omitting words not chosen. Id. We must avoid          appeals cited a Texas Attorney General opinion limiting the
adopting an interpretation that “renders any part of the statute   statute's application to health and safety matters because (1)
meaningless.” Crosstex Energy Servs, L.P. v. Pro Plus, Inc.,       it is entitled “Municipal Health and Safety Ordinances” and
430 S.W.3d 384, 390 (Tex.2014).                                    (2) section 54.012 specifically refers to those types of matters
                                                                   in some of its subsections. Id. (citing Tex. Att'y Gen. Op.
                                                                   No. GA–0267 (2004)). The court also cited Hollingsworth


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)
2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

v. City of Dallas, 931 S.W.2d 699 (Tex.App.–Dallas 1996,           As a general principle, we eschew constructions of a
writ denied), in which the court had previously resolved           statute that render any statutory language meaningless or
an apparent conflict between the injunctive-relief provisions      superfluous. Crosstex, 430 S.W.3d at 390. By interposing a
in chapters 54 and 211 as they pertain to general zoning           limitation into subsection (3) that the Legislature deliberately
ordinances regulating the use of land. In Hollingsworth, a         chose to include in some—but not all—of section 54.012's
property owner had argued that the City of Dallas could            subparts, the court of appeals' construction of the statute
not obtain injunctive relief for a zoning-ordinance violation      defeats the purpose of the Legislature's carefully chosen
without complying with section 54.106, which authorizes            words. This we cannot abide.
injunctive relief only on “a showing of substantial danger
of injury or an adverse health impact to any person or             We likewise do not attribute decisive weight to subchapter
to the property of any person other than the defendant.”           B's title because “[t]he heading of a title, subtitle, chapter, or
Id. at 702;TEX. LOC. GOV'T CODEE § 54.016. Section                 section does not limit or expand the meaning of a statute.”
211.012(c)'s injunctive-relief remedy includes no similar          See TEX. LOC. GOV'T CODEE § 311.024; see also Waffle
requirement. 4 TEX. LOC. GOV'T CODEE § 211.012(c).                 House, Inc. v. Williams, 313 S.W.3d 796, 809 (Tex.2010).
The court resolved the conflict in favor of section 211.012's
application because it specifically applies to ordinances          Nor do we perceive a fatal conflict between chapter 54,
regulating the use of land and section 54.016 does not.            subchapter B and chapter 211 that would render the former
931 S.W.2d at 703 (construing statutes to avoid creating           wholly inapplicable to a general land-use ordinance despite
a conflict and determining that “the Legislature intended          its plain language. Chapter 54 provides municipalities with
section 211.012 to apply to ordinances regulating the use of       general authority to enforce ordinances whereas chapter 211
land and intended section 54.016 to apply to other types of        grants municipalities specific authority to pass substantive
ordinances not at issue”).                                         ordinances regulating zoning. Whatever conflict may exist
                                                                   between the injunctive relief available under each of these
 *3 We hold that the court of appeals' interpretation of section   statutory schemes, we cannot say that the statutes are
54.012(3) as incorporating a health-and-safety limitation is       mutually exclusive merely because they overlap in scope.
contrary to the plain and unambiguous language in the statute      Although both statutory schemes authorize recovery of
and would render meaningless and redundant language in             civil penalties, the availability of the particular remedies
that section expressly circumscribing other categories of          hinge on distinct procedural mechanisms. Chapter 54 creates
ordinances enforceable under subchapter B.                         a framework for pursuing civil penalties for specific
                                                                   conduct while chapter 211 permits, but does not require,
Section 54.012(3) expressly authorizes municipalities, such        municipalities to adopt civil penalties for the violation of
as the City, to enforce ordinances “for zoning that provides       an ordinance adopted under that chapter. Compare TEX.
for the use of land or classifies a parcel of land according       LOC. GOV'T CODEE § 54.017withid. § 211.012(b). The
to the municipality's district classification scheme.”TEX.         City's election to forego adopting specific civil penalties for
LOC. GOV'T CODEE § 54.012(3). Section 54.012(3)'s                  violations of specific zoning ordinances does not preclude the
language plainly encompasses the zoning ordinance at issue         City from pursuing the remedies already available to it under
in this case, and neither the words “health” and “safety”          chapter 54, subchapter B, on the terms provided therein.
nor analogous limitations are included anywhere therein. In
comparison, at least three other subsections of section 54.012      *4 Applying section 54.012(3)'s plain language, we
expressly limit the types of ordinances that may be enforced       conclude that chapter 54, subchapter B authorizes a suit for
to those involving health or safety matters or use comparable      civil penalties based on a violation of the land-use restrictions
terminology. Seeid. § 54.012(1) (pertaining to ordinances          embodied in Dallas City Ordinance No. 21391, as amended
“for the preservation of public safety, relating to [building      by Ordinance No. 22158. The court of appeals' contrary
construction]”), .012(2) (referring to ordinances “relating        holding is erroneous.
to the preservation of public health or to the fire safety
of a building or other structure or improvement”), .012(6)          [5] In an alternative holding, the court of appeals determined
(applying to ordinances “relating to dangerously damaged or        that the City's civil-penalty claim would fail on the
deteriorated structures or improvements”).                         merits due to legally insufficient evidence that TCI had
                                                                   received actual notice of the ordinance provision before



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               3
City of Dallas v. TCI West End, Inc., --- S.W.3d ---- (2015)
2015 WL 2147986, 58 Tex. Sup. Ct. J. 888

                                                                       ordinance after it demolished the building, because “to bring
it demolished the building in violation of the ordinance.
                                                                       itself into compliance with the ordinance after demolition,
Although acknowledging the existence of evidence that TCI
                                                                       [TCI] would have to obtain approval from the Landmark
had actual notice of some of the requirements for obtaining
                                                                       Commission before the demolition.”
a demolition permit for buildings in the historic district, the
court held that the City “presented no evidence that [TCI] was
                                                                       The court of appeals did not address these arguments. Instead,
ever informed of the ordinance provisions themselves before
                                                                       it concluded that there was no evidence that TCI had actual
the building was demolished.” 407 S.W.3d at 301 (emphasis
                                                                       notice before it “violated an ordinance” by demolishing
added).
                                                                       the building, without considering whether TCI could have
                                                                       “take[n] action necessary for compliance with the ordinance
Regardless of the validity of the court's assessment of
                                                                       after receiving such notice.” Without addressing whether,
the evidence, which we need not consider, the court's
                                                                       in fact, TCI could have taken action to comply with the
analysis fails because section 54.017 authorizes an award of
                                                                       ordinance after receiving actual notice of the ordinance, we
civil penalties if the defendant violated an ordinance after
                                                                       agree with the City that the court of appeals erred in failing to
receiving notice of its provisions or failed to take action
                                                                       consider whether the civil-penalty award could be sustained
necessary for compliance with the ordinance after receiving
                                                                       under this alternative statutory ground.
such notice. TEX. LOC. GOV'T CODEE § 54.017(a). The
statute's use of “or,” a disjunctive, identifies two alternative
                                                                       Accordingly, without hearing oral argument, we reverse
bases for recovering civil penalties. See id.; see also City
of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 642                  the portion of the court of appeals' judgment concluding
                                                                       that chapter 54, subchapter B does not authorize the City's
(Tex.2013). The City asserts that the court of appeals erred
because there is some evidence that, even if TCI did not               enforcement action against TCI and remand the cause to that
receive actual notice of the ordinance provisions until after          court for further proceedings consistent with this opinion.
it had already violated the ordinance by demolishing the               SeeTEX. R. APP. P. 59.1.
building, TCI could have sought a post-demolition permit
or taken other steps “necessary for compliance with the
                                                                       All Citations
ordinance after receiving such notice.” In response, TCI
contends that it could not possibly have complied with the             --- S.W.3d ----, 2015 WL 2147986, 58 Tex. Sup. Ct. J. 888


Footnotes
1      The ordinance defines a “contributing structure” as one that “retains its essential architectural integrity of design and
       whose architectural style is typical or integral to [the] district.”
2      The City has not appealed adverse holdings by the trial court and court of appeals on its other claims.
3      Although the statute has been amended since the events giving rise to this litigation, the changes are not material to the
       issues on appeal; accordingly, we cite the current version of the statute for convenience.
4      Section 211.012(a) authorizes a municipality to adopt ordinances to enforce (1) the provisions of chapter 211, subchapter
       A, which imbues municipalities with the authority to adopt general zoning regulations, and (2) any ordinance or regulation
       adopted thereunder. TEX. LOC. GOV'T CODEE § 211.012. Section 211.012(c) provides that “in addition to other
       remedies,” a municipal authority may obtain an injunction “[i]f a building or other structure is erected, constructed,
       reconstructed, altered, repaired, converted, or maintained ... in violation of this subchapter or an ordinance or regulation
       adopted under this subchapter.”


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  4
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


                                                                 intervened. See Public Utility Regulatory Act (PURA),
                                                                 Tex.Rev.Civ.Stat.Ann. art. 1446c, § 69 (West Supp.1993);
                    851 S.W.2d 896
                                                                 Texas Administrative Procedure and Texas Register Act
                Court of Appeals of Texas,
                                                                 (APTRA), Tex.Rev.Civ.Stat.Ann. art. 6252–13a, § 19 (West
                         Austin.
                                                                 Supp.1993). In its final judgment, the district court affirmed
             CITY OF EL PASO and Public                          the agency order in one part and reversed it in another,
              Utility Commission of Texas,                       remanding the case to the Commission. The Commission and
                          v.                                     the City appeal. See APTRA § 20. We will affirm the district-
                                                                 court judgment.
            EL PASO ELECTRIC COMPANY.

       No. 3–92–038–CV. | March 10, 1993.
        | Rehearing Overruled May 26, 1993.                            FUEL–RECONCILIATION PROCEEDINGS

Electric company and city sued for judicial review of            An electric utility is generally entitled to recover through
final order issued by public utility commission in fuel          its rates any sums expended for reasonable and necessary
reconciliation proceeding. The 147th Judicial District Court,    operating expenses, including the cost of fuel and fuel-related
Travis County, F. Scott McCown, J., affirmed agency order        items. PURA § 39(a). A utility incurs these fuel costs directly
in one part and reversed it in another, remanded case to         when it generates its own electric power; it incurs them
commission, and commission and city appealed. The Court of       indirectly, as an element of the price paid, when the utility
Appeals, Powers, J., held that: (1) commission was required      buys electric power from another. Although the Company
to provide explanation for choice of meaning it assigned to      generates its own electric power, it also purchases electric
word “prospectively” which produced inconsistent treatment       power under a contract with Southwestern Public Service
of capacity costs in two back-to-back reconciliation periods,    Company.
and (2) commission was not obliged to deduct all profit
from off-system sales in calculating company's known and         Before 1983, the Commission calculated an electric utility's
reasonably predictable fuel costs.                               operating expenses (and hence the utility's rates) based on
                                                                 actual fuel costs, authorizing the utility to “pass through”
Affirmed.                                                        automatically to its customers any increases or decreases in
                                                                 such costs. 1 The legislature forbade the practice in 1983. 2
Attorneys and Law Firms                                          To accommodate the new legislation, *898 the Commission
                                                                 promulgated a set of rules known collectively as the “fuel
 *897 Norman J. Gordon, Diamond, Rash, Gordon &                  rule.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23(b),
Jackson, P.C., El Paso, for City of El Paso.                     since amended).

Dan Morales, Atty. Gen., Mary A. Keeney, Asst. Atty. Gen.,       As a practical matter, the Commission cannot embark upon
Austin, for Public Utility Com'n of Texas.                       and decide a new rate case with each variation in fuel prices.
                                                                 The agency therefore adopted, for its ratemaking, the device
John F. Williams, Clark, Thomas, Winters & Newton, Austin,
                                                                 of a “fixed fuel factor.” This factor is the sum of a utility's
for El Paso Elec. Co.
                                                                 “known costs” for fuel plus its “reasonably predictable fuel
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.                      costs.” The latter element renders the sum a mere estimate
                                                                 of the utility's fuel costs. Nevertheless, the estimate is fixed
Opinion                                                          for ratemaking purposes as the utility's hypothetical fuel cost;
                                                                 it is used in calculating the utility's total operating expenses
POWERS, Justice.                                                 and, ultimately, the rates the utility is permitted to charge its
                                                                 customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), 23.23(c).
El Paso Electric Company and the City of El Paso sued
                                                                 Because actual fuel costs may vary from the estimate, after
for judicial review of a final order issued by the Public
                                                                 the rates go into effect, the utility may recover through its
Utility Commission in a contested case, a “fuel-reconciliation
                                                                 rates more or less than the net income its rates were designed
proceeding” initiated by the Company in which the City
                                                                 to produce. Consequently, the fuel rule provides for periodic


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


adjustments or “reconciliations” of the difference between          reducing its customers' bills by purchasing cheaper power
actual fuel costs and the hypothetical cost represented by          from Southwestern. The Commission's decision in this earlier
the fixed-fuel factor. 16 Tex.Admin.Code § 23.23(b)(2)(H).          case preceded by about nine months the amendment of the
The reconciliation may be part of a general rate case or an         fuel rule to allow expressly for the reconciliation of capacity
independent reconciliation proceeding. Id. Depending on the         costs upon a demonstration of “special circumstances”; that is
result of the reconciliation, the utility may be required to        to say, the Commission viewed the equitable considerations
refund to its customers an over-recovery of fuel costs or it may    as amounting to an implied exception to a general rule that
be permitted to recoup an under-recovery through surcharges         capacity costs were non-reconcilable. It appears to *899 us
to its customers. 16 Tex.Admin.Code §§ 23.23(b)(2)(B), (F),         self-evident, therefore, that “equitable” considerations could
(G).                                                                come within the express exception presently made by section
                                                                    23.23(b)(2)(B)(ii) for “special circumstances.” No argument
                                                                    is made to the contrary in the present appeal.

      PURCHASED–POWER CAPACITY COSTS
                                                                    The Commission's final order in docket number 6350 also
Not every fuel-related cost is includable in a utility's            adopted a part of the examiner's report wherein he stated
fixed-fuel factor; consequently, not every fuel-related cost        that he agreed with a witness's view that the capacity costs
is recoverable through the reconciliation process. One              paid to Southwestern “should be treated as a non-reconcilable
excludable item is denominated “purchased power capacity            expense prospectively.” This gives rise to a part of the present
costs.” The term “capacity costs” refers to one element of          controversy.
the price charged by a seller of electric power—an element
that represents the seller's fixed costs in generating the power.
(Another element, denominated “energy charges,” represents                              Docket Number 8588
the seller's variable costs in generating the power—the cost
of fuel, for example). A Commission regulation presently            The contested case now before us on appeal was conducted
excludes from a utility's fixed-fuel factor the capacity-cost       under the Commission's docket number 8588. It is not a
element of purchased power “unless the utility demonstrates         rate case but rather an independent reconciliation proceeding.
that such treatment is justified by special circumstances.”         In this proceeding, the Company requested reconciliation of
16 Tex.Admin.Code § 23.23(b)(2)(B)(ii). The Commission's            $4,202,090 in capacity costs paid to Southwestern between
regulations did not always allow for exceptions when                July 31, 1985, and April 25, 1986, a period of about nine
“justified by special circumstances.” Before the regulation         months. The period is the interval between the last day of the
was adopted, the Commission issued its final order in an            reconciliation period covered in docket number 6350 (July
earlier contested case under the agency's docket number 6350.       31, 1985) and the effective date of the new rates established in
                                                                    that contested case (April 25, 1986). As special circumstances
                                                                    justifying reconciliation of the capacity costs paid in that
                                                                    period, the Company pointed to the Commission's final order
                    Docket Number 6350
                                                                    in docket number 6350, wherein the agency had declared
Docket number 6350 was a general rate case that                     that capacity costs should be treated as non-reconcilable
included a reconciliation proceeding. The Company satisfied         “prospectively.” The word “prospectively” meant, according
the Commission that special considerations justified                to the Company, from and after the effective date (April 25,
reconciliation treatment of the capacity costs the Company          1986) of the new rates established in docket number 6350.
paid to Southwestern, during the period March 1984                  Hence, by force of that order, the Company was entitled
through July 1985, even though such costs would not                 to reconciliation of capacity costs paid in the nine-month
ordinarily be entitled to such treatment. The Commission's          interval before the new rates became effective.
final order in docket number 6350 demonstrates that the
special considerations were “equitable” in nature: (1) the          In its finding of fact 14 in docket number 8588, the
purchases of power from Southwestern had benefitted the             Commission rejected the Company's contention, stating
Company's customers; (2) capacity costs were a necessary            simply that the Company had “failed to show special
element of the Southwestern charges; and (3) it would               circumstances warranting inclusion” of such capacity costs in
be inequitable to penalize the Company for successfully             the reconciliation. The sole basis for this conclusion is found



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


in a portion of the examiner's report, which the Commission       “prospectively” was ambiguous in context, and nothing in
adopted in its final order: The word “prospectively,” as used     the record before us suggests why the Commission preferred
in the final order in docket number 6350, meant from and after    one date over another. We are left ultimately with the stark
July 31, 1985—the end of the reconciliation period covered        conclusion that “prospectively” means from and after July
in docket number 6350—as opposed to the Company's                 31, 1985, merely because that is what the examiner in docket
contention that the word meant from and after April 25, 1986,     number 8588 decided it meant. Was the Commission legally
the effective date of the rates set in the Commission's final     obliged to supply an actual reason or explanation for its choice
order in docket 6350.                                             of meanings? We believe it was.

The Company sued for judicial review of this aspect of the        We cannot find that the legislature has imposed upon the
Commission's final order in docket number 8588. The district      Commission, by an explicit statutory enactment, a duty
court reversed the agency order on the ground that it was         to supply an explanation or reason for its action. But
arbitrary and capricious in failing adequately to explain why     such a requirement need not have a statutory origin. It is
the capacity charges were admitted to reconciliation in the       preeminently a concomitant of a court's duty of judicial
one period and denied reconciliation in the next succeeding       review, a duty assigned the trial court and this court in
period. The court remanded the case to the Commission to          PURA § 69. This statute contemplates meaningful judicial
supply an explanation. In the Commission's only point of          review, not a charade of the real thing; therefore it implies
error and in the City's first point of error, they complain of    a power to require the Commission to supply any reasons or
this aspect of the district-court judgment.                       explanations necessary for the reviewing court to understand
                                                                  the Commission's final order.

                                                                               If the administrative action is to be
                 Discussion and Holdings                                       tested by the basis upon which it
                                                                               purports to rest, that must be set
 [1] In its final order in the present case, the Commission
                                                                               forth with such clarity as to be
gave a single ground for its decision regarding capacity costs:
                                                                               understandable. It will not do for a
the Company failed to demonstrate the requisite “special
                                                                               court to be compelled to guess at
circumstances” because the word “prospectively,” as used in
                                                                               the theory underlying the agency's
the final order adjudicating docket number 6350, meant from
                                                                               action; nor can a court be expected to
and after July 31, 1985. The final order in the present case,
                                                                               chisel that which must be precise from
excluding capacity costs from reconciliation, must stand or
                                                                               what the agency has left vague and
fall on that basis. We are not at liberty to sustain the order
                                                                               indecisive. In other words, “We must
on some other basis we might imagine as being sufficient
                                                                               know what a decision means before the
for the different treatment in the two cases—for example, an
                                                                               duty becomes ours to say whether it is
apparent difference in the material factual circumstances as
                                                                               right or wrong.”
between the two proceedings. We may judge the sufficiency
of the Commission's order solely on the basis given by            S.E.C. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575,
the agency itself for its decision; to do otherwise would         1577, 91 L.Ed. 1995 (1947) (emphasis added) (citations
constitute an invasion of the agency's province. Morgan           omitted); see also S.E.C. v. Chenery Corp., 318 U.S. 80,
Drive Away, Inc. v. Railroad Comm'n, 498 S.W.2d 147, 152          94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943) (“[T]he orderly
(Tex.1973); *900 Professional Mobile Home Transp. v.              functioning of the process of review requires that the grounds
Railroad Comm'n, 733 S.W.2d 892, 904 (Tex.App.—Austin             upon which the administrative agency acted be clearly
1987, writ ref'd n.r.e.).                                         disclosed and adequately sustained.”) (emphasis added); see
                                                                  generally Bernard Schwartz, Administrative Law § 7.29,
 [2] We note first that the examiner's purported explanation      at 429 (2d ed. 1984); Kenneth C. Davis, Administrative
—that the word “prospectively” meant from and after July          Law Text § 16.07, at 326 (3d ed. 1972). The requirement
31, 1985—adds nothing to enlighten the Commission's naked         of explanations or reasons is frequently imposed when it
conclusion that the Company had failed to demonstrate the         appears to the reviewing court that an agency has departed
necessary special circumstances. Both the conclusion and          from its earlier administrative policy or there exists an
the purported explanation are equally opaque. The word            apparent inconsistency in agency determinations. Louis Jaffe,


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


Judicial Control of Administrative Action 587 (1965); see,          We hold, therefore, that the Commission's final order
e.g., Atchison, T. & S.F. Ry. Co. v. Wichita Bd. of Trade, 412      erroneously omitted to supply a necessary explanation for the
U.S. 800, 808, 93 S.Ct. 2367, 2375, 37 L.Ed.2d 350 (1973);          choice of meaning it assigned to the word “prospectively,”
Secretary of Agric. v. United States, 347 U.S. 645, 653, 74         producing thereby the inconsistent treatment of capacity costs
S.Ct. 826, 831, 98 L.Ed. 1015 (1954). The requirement for           in the two back-to-back reconciliation periods. As in Gulf
explanatory “reasons” should not be confused with a statutory       States, the agency order in docket number 8588 referred
requirement that binds an agency to supply findings of fact         only to the statement of an individual (the hearing examiner
in support of its conclusions of law, as in APTRA § 16(b).          in docket number 6350) whose naked conclusion was not
“Reasons differ from findings in that reasons relate to law,        explained in the record. We agree with the trial court that
policy, and discretion rather than to facts.” Davis, supra, at      the failure to supply the necessary explanation was an abuse
326. Nevertheless, agencies frequently use findings of fact to      of discretion under APTRA § 19(e)(6); it is immaterial that
explain the conclusions which express their choices in matters      under the peculiar Texas view of “substantial evidence”
of discretion, law, and policy. Schwartz, supra, at 428–30.         the omission would also amount to a want of “substantial
                                                                    evidence” under APTRA § 19(e)(5).
 [3] We believe the Supreme Court of Texas, in Public
Utility Commission v. Gulf States Utilities, 809 S.W.2d 201,        The City and the Commission raise several arguments to
212 (Tex.1991), adopted a requirement that agencies must            the contrary. They first complain the Company offered no
supply explanations or reasons when these are necessary to an       “evidence” of special circumstances. It is clear from the
intelligent understanding of their final orders. There, the court   record, however, that the Company was not relying upon
reversed a Commission decision because the agency record            evidentiary grounds for its contention that such special
revealed that the Commission had apparently considered only         circumstances existed in docket number 8588, the case
a single factor in taking a particular discretionary action         we now review. Rather, the Company was relying upon
(dividing between a utility and its ratepayers the benefit          legal grounds—that the final order in docket number 6350,
of proceeds received from the sale of a utility asset). The         properly construed, encompassed the nine months for which
court noted that numerous other factors, including equitable        reconciliation was requested in docket number 8588. Indeed,
considerations, *901 appeared applicable to the agency's            the Commission in docket number 8588 rejected the claim
decision in the matter. In reversing the Commission's final         for reconciliation on legal grounds, not evidentiary or factual
order, the court wrote that the agency “ignored” the other,         grounds, by basing the agency ruling on a construction of the
apparently applicable factors, while referring only to the          previous order, albeit in a manner contrary to that advocated
testimony of two witnesses whose conclusions were not               by the Company. We do not understand that the term “special
explained in the record, and “the Commission did not                circumstances” means evidentiary grounds exclusively, and
articulate its reasons for” deciding the issue based on the         no party suggests that it does.
single factor alone. In its remand, the court refrained from
instructing the Commission to consider particular factors and       The City and the Commission argue next that the examiner's
from prohibiting its consideration of other factors, leaving the    report in docket number 6350 was “clear” in affirmatively
agency free to choose and “set forth the factors it considers       and expressly prohibiting “prospective recovery of capacity
relevant” together with an explanation of “how these factors        charges,” meaning “all capacity charges not placed in issue in
are evaluated in the present case.” Id. at 211–12. While the        that docket.” We disagree.
court nominally reversed the agency order for a want of
“substantial evidence,” it is readily apparent that the court did   The relevant part of the examiner's report declares: (1)
so only because of the rather peculiar meaning “substantial         the examiner agreed that capacity costs “should be treated
evidence” bears in Texas administrative law—a meaning               as a non-reconcilable expense prospectively”; (2) however,
that generally incorporates into a single legal precept both        that would be inequitable (for specified reasons) with
arbitrary and capricious agency action under APTRA § 19(e)          respect to “past payments” of such costs; (3) therefore, the
(6) and a true want of substantial evidence under APTRA §           examiner recommends that “prior” capacity-cost expenses be
19(e)(5). See generally Kerry McGrath, Substantial Evidence         included “in the reconciliation balance.” These declarations
Review in Texas—Still Insubstantial After All These Years, 44       are clear on one point—capacity costs paid before July
Baylor L.Rev. 223 (1992).                                           31, 1985, the end of the reconciliation period in docket
                                                                    number 6350, would be reconcilable expenses under the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


examiner's recommendation. The declarations are not clear          Commission's final order could not be reversed on the ground
in the sense urged by the City and the Commission—that             that it was “arbitrary and capricious.” In support of their
they affirmatively and expressly prohibit reconciliation of the    argument, the City and the Commission cite judicial decisions
capacity costs presently in dispute. In fact, the City offers no   that were decided on arbitrary and capricious grounds on an
argument in support of its conclusion that the declarations        apparent theory that these exhaust the possibilities and define
are “clear” in excluding these capacity *902 costs from            the limits of arbitrary and capricious action under APTRA §
reconciliation; the Commission offers only the opaque              19(e)(6). See Lewis v. Metropolitan Sav. and Loan Ass'n, 550
generality that an administrative agency's interpretation of its   S.W.2d 11 (Tex.1977); Railroad Comm'n v. Alamo Express,
order is entitled to judicial deference.                           158 Tex. 68, 308 S.W.2d 843 (1958); Public Util. Comm'n
                                                                   v. South Plains Elec. Coop., 635 S.W.2d 954 (Tex.App.—
We find in the declarations nothing to suggest that the            Austin 1982, writ ref'd n.r.e.). We disagree with the theory. In
Commission, by adopting its examiner's report in docket            any case, we are obliged to affirm the district-court judgment
number 6350, prohibited reconciliation of capacity-cost            if it is correct on any legal ground. We have discussed those
expenses in the period July 31, 1985—April 25, 1986. Indeed,       grounds above.
the examiner's declarations reasonably imply in context that
capacity costs paid in the period were entitled to the same        For the reasons given, we overrule the Commission's only
equitable justification because April 25, 1986, was the date       point of error and the City's first point of error.
when the examiner's declarations first acquired legal force
and effect by the Commission's adoption of them. The terms
of the examiner's recommendation do not suggest that the
                                                                              OFF–SYSTEM SALES REVENUES
equitable considerations became inoperable on July 31, 1985,
or that the expressions “past payments” and “prior” capacity-      Section 23.23(b)(2)(A) requires that a utility maintain and
cost expenses referred to a date other than the effective date     provide the Commission information showing, among other
of the order in docket number 6350.                                things, the utility's “off-system sales revenues.” These are
                                                                   revenues derived from a utility's sales of excess electric power
The City and the Commission argue that the Company's               to other utilities. Under § 23.23(b)(2)(B)(i), the net revenues
contention amounts to no more than a complaint of                  from these sales may be set off against costs in calculating,
“regulatory lag” during the nine months between the end            for reconciliation purposes, a utility's “known or reasonably
of the reconciliation period in docket number 6350 and             predictable fuel costs.”
the effective date of the final order in that contested case.
And, they properly point out, losses occasioned merely             In the reconciliation period of docket number 8588, the case
by regulatory lag are not recoverable by a utility. We             we now review, the Company received from off-system sales
disagree with the theory. “Regulatory lag” refers to delay         a net revenue equal to $3,099,564 above its costs for fuel and
in the “decisional process” of a regulatory agency. Railroad       fuel-related items. In its final order, the Commission declined
Comm'n v. Lone Star Gas Co., 656 S.W.2d 421, 423                   to deduct any part of this sum in calculating the Company's
(Tex.1983). The Company does not complain of any delay in          known or reasonably predictable fuel costs. The agency noted
the “decisional process” in docket number 6350. It complains       in its order, however, that in future reconciliation periods the
instead of the apparently arbitrary meaning assigned in the        agency would deduct 75 *903 percent of such revenues in
present case to the word “prospectively” as that word was
                                                                   calculating known or reasonably predictable fuel costs. 3 In
adopted in the Commission's final order in docket number
                                                                   its finding of fact 11, the Commission stated: (1) profits from
6350. That choice of meaning, and not any delay in the
                                                                   off-system sales result jointly from the Company's efforts to
“decisional process,” fixed the time period in dispute.
                                                                   make such sales and from the availability of electric power
                                                                   generated from facilities paid for, in effect, by the Company's
Finally, the City and the Commission argue that the
                                                                   customers; (2) consequently, in future reconciliation periods
phrase “arbitrary and capricious,” recited in the district-court
                                                                   the Commission would assign 75 percent of the profits to the
judgment as the basis for reversing the Commission's final
                                                                   customers' benefit and 25 percent to the Company's benefit to
order, does not encompass the agency's failure to explain its
                                                                   encourage the Company to continue making such sales; and
different treatment of capacity costs as compared to docket
                                                                   (3) for the reconciliation period covered in docket number
number 6350. Hence, they contend, apparently, that the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


8588, however, the profits from off-system sales would
continue to be excluded from the reconciliation calculations.       The breadth of discretion implied by these statutory
                                                                    expressions is contradicted absolutely by the straightjacket
In its second point of error, the City argues the Commission        theory that the City erects upon an implication imputed to
erred by not deducting all off-system sales revenues from the       the term “total revenues.” Granted that some more particular
Company's known and reasonably predictable fuel costs and           provision in PURA might have denied the Commission
contends the district court erred in affirming this aspect of the   discretion to apportion net revenues from off-system sales,
agency order.                                                       expressly or by necessary *904 implication, we believe the
                                                                    term “total revenues” is not such a provision. We believe,
                                                                    for example, that the legislature did not intend that any
                                                                    implication imputed to the term “total revenues” should deny
                  Discussion and Holdings                           the Commission discretion to divide such revenues if the
                                                                    division was necessary to insure a rate that is “just and
 [4] The City argues the Commission was obliged to deduct
                                                                    reasonable” or to secure “efficiency” in utility operations and
all profits from off-system sales, in calculating the Company's
                                                                    an acceptable “quality” in utility management. And we point
known and reasonably predictable fuel costs, because the
                                                                    out that efficient operations and high-quality management
agency lacked the power to divide such profits and to assign
                                                                    were the Commission's express objectives in choosing to
one part to the Company's benefit and another part to its
                                                                    apportion sales revenues in this case.
customers' benefit. The City bases its argument on PURA
§ 41(c) which defines the “net income” factor used to fix a
                                                                    The City suggests no general principle which prohibits the
utility's rates under PURA § 39(a). 4 PURA § 41(c) defines          division and apportionments made in the present case; the
“net income” as “the total revenues of the public utility less      City relies solely upon the implication it attributes to the term
all reasonable and necessary expenses as determined by the          “total revenues.” This implication is not the Commission's
Commission.” (emphasis added). The substance of the City's          interpretation of that expression, for section 23.23(b)(2)(B)(i)
argument is that the statutory term “total revenues” implies        of that rule contemplates consideration of other “conditions
an entirety; hence it is not divisible in an agency proceeding      or events” that bear upon a utility's fuel and fuel-related costs
that pertains to ratemaking. We disagree.                           in the reconciliation context. The division and apportionment
                                                                    of future revenues in this case amounts to an agency
In PURA the Commission received from the legislature                interpretation of the fuel rule. We see nothing unreasonable
powers that are broad and flexible:                                 or ultra vires in that interpretation, and the fuel rule pertains
                                                                    ultimately to a utility's operating expenses, not its revenues.
  The commission has the general power to regulate and
  supervise the business of every public utility within its
                                                                    We, therefore, overrule the City's contention that the
  jurisdiction and to do all things, whether specifically
                                                                    Commission exceeded its power and discretion when it
  designated in this Act or implied herein, necessary and
                                                                    apportioned the off-system sales revenues.
  convenient to the exercise of this power and jurisdiction.
  [PURA § 16(a) ]
                                                                    The City contends there was insufficient evidence adduced
  The commission is hereby vested with all authority and            in the agency proceeding to support a reasonable conclusion
  power ... to insure compliance with the obligations of            that an allocation of a part of the benefit to the Company
  public utilities in this Act. [PURA § 37]                         would provide an incentive to make future sales of a like
                                                                    kind for the ultimate benefit of its customers. The argument
  It shall be the duty of the [commission] to insure that every     refers to that part of the Commission's finding of fact 11
  rate ... shall be just and reasonable. [PURA § 38]                which stated the agency's reason for allocating 25 percent of
                                                                    the profits to the benefit of the Company in the future. The
  In fixing a reasonable return on invested capital, the
                                                                    Commission's declaration merely explained why the agency
  [commission] shall consider ... the efficiency of the utility's
                                                                    made the allocation; it does not purport to be the declaration
  operations, and the quality of the utility's management.
                                                                    of a fact inferred by the agency from evidence adduced in
  [PURA § 39(b) ].
                                                                    the contested case. See Davis, supra. We overrule the City's
                                                                    contention.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
City of El Paso v. El Paso Elec. Co., 851 S.W.2d 896 (1993)


                                                                      utility's “reasonable and necessary operating expenses” for
 [5] The City contends finally that providing the Company
                                                                      purpose of PURA § 39(a), while allowing concurrently for a
an incentive to make off-system sales was not a relevant
                                                                      consideration of some of the stated factors listed in PURA §
statutory factor in establishing reconcilable fuel costs;
                                                                      39(b) “in addition to other applicable factors.” If nothing else,
consequently, the Commission's decision on that basis
                                                                      the allocation refers directly to “the efficiency of the utility's
amounted to an abuse of discretion under South Plains
                                                                      operation.” In the words of PURA § 39(a), it is at least another
Electric Cooperative, 635 S.W.2d at 957. We disagree.
                                                                      “applicable factor.” We overrule the City's contention.
In promulgating the fuel rule, the Commission responded
                                                                      For the reasons given, we overrule the City's second point of
to the legislative prohibition against fuel-adjustment “pass-
                                                                      error.
throughs.” It has not been suggested that the fuel rule, based
in part upon predicted fuel costs with periodic reconciliations
                                                                      Finding no error, we affirm the district-court judgment.
to actual costs, is an unreasonable rule or one out of harmony
with PURA. We have held that the rule lay within the
Commission's statutory power to enact at its discretion.
                                                                      All Citations
The rule establishes, at bottom, an arrangement by which
a hypothetical cost of fuel may be used to calculate a                851 S.W.2d 896


Footnotes
1      See 16 Tex.Admin.Code § 23.23(b)(2)–(8) (1981, since amended).
2      PURA § 43(g)(1) provides that “[a] rate or tariff set by the commission shall not authorize a utility to automatically adjust
       and pass through to its customers changes in fuel or other costs of the utility.” The provision was added by Acts 1983,
       68th Leg., p. 647, ch. 146, § 2, effective August 29, 1983.
3      No party suggests that the futurity aspect of this part of the agency order should preclude judicial review. We see no
       reason why it should. See Bernard Schwartz, Administrative Law § 9.1, at 522–25 (2d ed. 1984).
4      In a determination of allowable fuel costs, the original version of the Fuel Rule listed six costs to be considered, plus “other
       costs associated with generated and purchased power.” 8 Tex.Reg. 3540 (1983) (16 Tex.Admin.Code § 23.23(b)(2)(B),
       since amended). The rule further instructed that “the commission shall consider revenues and costs from these other
       activities, including off-system sales, to assure that the ratepayers receive an appropriate portion of benefits associated
       with such revenues.” Id. (emphasis added). Nothing in PURA or in the Commission's current regulations deals explicitly
       with the calculation of off-system sales in the reconciliation of fuel costs.
          Although the current version of the Fuel Rule does not contain specific reference to off-system sales, the general
          language has been amended to require consideration of “other costs and revenues associated with generated or
          purchased power.” 16 Tex.Admin.Code § 23.23(b)(2)(B)(i) (emphasis added).


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   7
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848


                                                                Jay Doegey, Assistant City Attorney for the City of Corpus
                    168 S.W.3d 802                              Christi, Texas, Corpus Christi, Theodore P. Gorski Jr., Office
                Supreme Court of Texas.                         of the City Attorney for City of Fort Worth, Mark G.
                                                                Daniel, Evans Gandy Daniel & Moore, Fritz Quast, Taylor
           The CITY OF KELLER, Petitioner,
                                                                Olson Adkins Sralla & Elam, LLP, Fort Worth, Monte
                         v.
                                                                Akers, Texas Municipal League, Austin, Michael A. Bucek,
      John W. WILSON, Grace S. Wilson, Johnny
                                                                Senior Assistant City Attorney, Irving, Robert F. Brown,
     L. Wilson and Nancy A. Wilson, Respondents.                Brown & Hofmeister, L.L.P., Richardson, Bruce S. Powers,
                                                                Assistant County Attorney, Michael A. Stafford, Harris
           No. 02–1012. | Argued Oct. 19,
                                                                County Attorney, Houston, for Amicus Curiae.
         2004. | Decided June 10, 2005.
          | Rehearing Denied Sept. 2, 2005.                     Opinion

Synopsis                                                        Justice BRISTER delivered the opinion of the Court, in
Background: Landowners brought action against city to           which Chief Justice JEFFERSON, Justice HECHT, Justice
recover damages for inverse condemnation and for violations     WAINWRIGHT, and Justice GREEN joined, and in which
of Water Code. The 96th District Court, Tarrant County,         Justice O'NEILL and Justice MEDINA joined as to Parts I
Jeff Walker, J., entered judgment on jury verdict in favor of   through IV.
landowners. City appealed. The Fort Worth Court of Appeals,
86 S.W.3d 693, affirmed. City filed petition for review.        Must an appellate court reviewing a verdict for legal
                                                                sufficiency start by considering all the evidence or only part?
                                                                Over the years, we have stated both as the proper scope
                                                                of review. While some see the standards as opposing, we
Holdings: The Supreme Court, Brister, J., held that:
                                                                disagree; like a glass that is half-full or half-empty, both arrive
                                                                at the same point regardless of where they start.
[1] both the “exclusive” and “inclusive” standards for no-
evidence review are correct, in that the two standards reach
                                                                But both standards must be properly applied. Rules and
the same result, and
                                                                reason sometimes compel that evidence must be credited
                                                                or discarded whether it supports a verdict or contradicts
[2] no evidence established that city's approval of revised
                                                                it. Under either scope of review, appellate courts must
drainage plans, which resulted in flooding of landowners'
                                                                view the evidence in the light favorable to the verdict,
farm property, was an intentional taking.
                                                                crediting favorable evidence if reasonable jurors could, and
                                                                disregarding contrary evidence unless reasonable jurors could
Judgment of Court of Appeals reversed; case remanded.           not. As we find the evidence here meets neither standard, we
                                                                reverse.
O'Neill, J., filed concurring opinion in which Medina, J.,
joined.
                                                                             I. Factual and Procedural History

Attorneys and Law Firms                                         The City of Keller is one of several fast-growing communities
                                                                on the outskirts of *808 Fort Worth. 1 As part of that growth,
*807 Dabney D. Bassel, Larry Bracken, Law Snakard &
                                                                the City approved plans for two new subdivisions, Estates of
Gambill, P.C., Fort Worth, Douglas H. Conner III, L. Stanton
                                                                Oak Run and Rancho Serena, including plans for storm water
Lowry, Boyle & Lowry, L.L.P., Irving, for petitioner.
                                                                drainage.
James B. Barlow, Barlow & Garsek, Fort Worth, Robert L.
Russell Bush, Bush & Morrison, Arlington, David R. Casey,       The Wilsons own property southeast of the new subdivisions,
Hurst, for respondents.                                         with a tract owned by Z.T. Sebastian lying between. Before
                                                                development, surface water flowed generally north to south
                                                                from the land where the subdivisions were built, across the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

Sebastian and Wilson properties, and into the Little Bear          only the evidence and inferences that tend to support the
Creek Watershed.                                                   finding and disregard all evidence and inferences to the
                                                                   contrary.” 5 The City challenges *809 this omission as
In 1991, the City adopted a Master Drainage Plan providing         applying the wrong scope of review.
for drainage easements across both the Sebastian and Wilson
properties, and thence into Little Bear Creek. The City's codes    We have on many occasions stated the scope of review
require developers to comply with the Master Plan, to provide      precisely as the court of appeals says (the “exclusive”
drainage for a 100–year rain event, and to avoid increasing
                                                                   standard). 6 But we have also stated that a reviewing court
the volume or velocity of water discharged upon downhill
                                                                   must consider “all of the evidence” in the light favorable to
properties.
                                                                   the verdict (the “inclusive” standard). 7 Sometimes we have
The developers of Oak Run and Rancho Serena submitted              mentioned neither reviewing all evidence nor disregarding
plans to the City indicating they would buy a drainage             some part of it. 8 Finally, we have sometimes expressly
easement and build a ditch forty-five feet wide and more           mentioned both. 9
than two hundred yards long across the Sebastian property,
and deed both to the City upon completion. 2 The plans also        Although this Court has used both the exclusive and
included detention basins on the subdivision properties, but       the inclusive standards interchangeably over the years,
omitted any drainage easement or ditch across the Wilsons'         commentators say the two are different. 10 Because this
property. The City's director of public works approved              *810 important issue is dispositive here, we address it in
the developers' plans, and the City accepted the works on          some detail, and reserve for another day the City's arguments
completion.                                                        that a governmental entity cannot be liable for approving a
                                                                   developer's plans, or accepting rather than constructing the
In accordance with the Master Plan, the City built a box           works at issue.
culvert south of the Wilsons' property. But as the developers'
drainage ditch ended at the Wilsons' north property line, there
was no link between the two. The Wilsons alleged and the
jury found this omission increased flooding on the Wilsons'          II. Contrary Evidence That Cannot Be Disregarded
property, ruining eight acres of farmland the jury valued at
                                                                   The question presented here is not a new one. More than
almost $300,000.
                                                                   40 years ago, then Justice Calvert 11 addressed the standards
 [1] To recover damages for inverse condemnation, the              for reviewing legal and factual sufficiency in the most-cited
Wilsons had to prove the City intentionally took or damaged        law review article in Texas legal history. 12 Frustrated that
their property for public use, or was substantially certain that   despite this Court's efforts to explain those standards “a
would be the result. 3 They do not allege the City intentionally   growing number of recent decisions indicate a continuing
flooded their land, but do allege it approved revised plans that   misunderstanding,” 13 the author summarized and attempted
it knew were substantially certain to have that effect.            to clarify Texas law up to 1960. 14 The article's impact
                                                                   remains substantial today, having been cited more than 100
The City contends no evidence supports the jury's finding of       times by Texas courts in the last five years.
an intentional taking. It presented evidence that engineers for
the developers, for the City, and for an outside firm the City     According to the article:
retained all certified that the revised drainage plan complied
with the City's codes and regulations—including the ban                        “No evidence” points must, and
against increasing downstream runoff. Thus, the City asserts                   may only, be sustained when the
it had no reason to be substantially certain the opposite would                record discloses one of the following
occur, until it did.                                                           situations: (a) a complete absence
                                                                               of evidence of a vital fact; (b) the
                                                                               court is barred by rules of law or of
A divided court of appeals rejected this contention. 4 In its
                                                                               evidence from giving weight to the
legal sufficiency review, the court refused to consider the
                                                                               only evidence offered to prove a vital
various engineers' certifications because “we are to consider


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

            fact; (c) the evidence offered to prove              evidence may not appear until all the evidence is reviewed in
            a vital fact is no more than a mere                  context.
            scintilla; (d) the evidence establishes
            conclusively the opposite of the vital                [5] [6] For example, publications alleged to be defamatory
                    15                                           must be viewed as a whole—including accompanying
            fact.
                                                                 statements, headlines, pictures, and the general tenor and
                                                                 reputation of the source itself. 20 A court reviewing
We have quoted a similar formulation on many occasions. 16
                                                                 legal sufficiency cannot disregard parts of a publication,
                                                                 considering only false statements to support a plaintiff's
Notably, Justice Calvert then proceeded to put the question
before us in the proper context:                                 verdict or only true ones to support a defense verdict. 21

            It is in deciding “no evidence”                       [7] [8] Similarly, reviewing courts must construe contracts
            points in situation (c) that the courts              as a whole; we do not consider only the parts favoring one
            follow the further rule of viewing the               party and disregard the remainder, as that would render the
            evidence in its most favorable light in              latter meaningless. 22 Even writings executed at different
            support of the finding of the vital fact,            times must be considered together if they pertain to the same
            considering only the evidence and the
                                                                 transaction. 23
            inferences which support the finding
            and rejecting the evidence and the
                                                                  [9] It is not just writings that reviewing courts must
            inferences which are contrary to the
                                                                 consider in context. For example, in reviewing intentional
            finding. 17                                          infliction of emotional distress claims for legal sufficiency,
                                                                 “we consider the context and the relationship between the
 [2] Clearly, the traditional rule in Texas has never been
                                                                 parties.” 24 Acts that might constitute outrageous conduct
that appellate courts must reject contrary evidence in
every no-evidence review. Instead, the traditional scope of      when dealing with a hearing-impaired consumer 25 may
review does not disregard contrary evidence if there is no       be legally insufficient between *812 business parties. 26
favorable evidence *811 (situation (a) above), or if contrary    In our no-evidence reviews of successful claims, we have
evidence renders supporting evidence incompetent (situation      invariably reviewed not just evidence showing the conduct
(b) above) or conclusively establishes the opposite (situation   was outrageous, but also evidence showing that, in context,
(d) above).                                                      it was not. 27

 [3] [4] As the following examples show, this has remained [10] More generally, evidence cannot be taken out of context
the rule since. We do not presume to categorize all             in a way that makes it seem to support a verdict when in fact
circumstances in which contrary evidence must be considered
                                                                it never did. 28 If a witness's statement “I did not do that”
in a legal sufficiency review. Evidence can be disregarded
                                                                is contrary to the jury's verdict, a reviewing court may need
whenever reasonable jurors could do so, 18 an inquiry that is   to disregard the whole statement, but cannot rewrite it by
necessarily fact-specific. But it is important that when courts disregarding the middle word alone.
use the exclusive standard and disregard contrary evidence,
they must recognize certain exceptions to it.                    [11] Thus, if evidence may be legally sufficient in one
                                                                 context but insufficient in another, the context cannot be
                                                                 disregarded even if that means rendering judgment contrary
                    A. Contextual Evidence                       to the jury's verdict. Either “evidence contrary to the verdict”
                                                                 must be defined to exclude material contextual evidence, or
In Justice Calvert's first situation—a complete absence of       it must be an exception to the general rule.
evidence of a vital fact—it is generally irrelevant whether a
reviewing court considers contrary evidence. 19 If supporting
evidence is absent, opposing evidence cannot change that                           B. Competency Evidence
result. But in a number of cases, the lack of supporting


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

 [12]   [13] It has long been the rule in Texas that As noted above, Justice Calvert believed the exclusive
incompetent evidence is legally insufficient to support a standard applied only when a no-evidence challenge asserted
judgment, even if admitted without objection. 29 Thus,             the evidence was no more than a scintilla. 39 But he went on
evidence showing it to be incompetent cannot be disregarded,       to note a “variation” that required contrary inferences to be
even if the result is contrary to the verdict. If the rule were    considered when the equal-inference rule applied. 40
otherwise, incompetent evidence would always be legally
sufficient, because the evidence showing it to be incompetent       [18] [19] In claims or defenses supported only by meager
could never be considered.                                         circumstantial evidence, the evidence does not rise above
                                                                   a scintilla (and thus is legally insufficient) if jurors would
Thus, for example, if an eyewitness's location renders a clear
                                                                   have to guess whether a vital fact exists. 41 “When the
view of an accident “physically impossible,” it is no evidence
                                                                   circumstances are equally consistent with either of two facts,
of what occurred, even if the eyewitness thinks otherwise. 30
                                                                   neither fact may be inferred.” 42 In such cases, we must “view
Similarly, an employee's testimony that he was in the course
                                                                   each piece of circumstantial *814 evidence, not in isolation,
and scope of his employment is legally insufficient to support
a verdict against his employer if the evidence shows that legal    but in light of all the known circumstances.” 43

conclusion to be incompetent. 31
                                                           Justice Calvert argued there was “no necessity for the
                                                           variation” because drawing an inference based on meager
 [14]    [15] This exception frequently applies to expert
                                                           evidence was unreasonable whether or not the reviewing
testimony. When expert testimony is required, lay evidence
                                                           court considered the opposing inferences. 44 Nevertheless, he
supporting liability is legally insufficient. 32 In *813
                                                           recognized that “[t]he opposing inference is present and it
such cases, a no-evidence review cannot disregard contrary
evidence showing the witness was unqualified to give an    does no harm to note its presence.” 45

opinion. 33 And if an expert's opinion is based on certain
                                                                   In subsequent cases this Court has continued to note rather
assumptions about the facts, we cannot disregard evidence
                                                                   than disregard the presence of equal but opposite inferences,
showing those assumptions were unfounded. 34                       often because lower courts have overlooked them. Thus,
                                                                   for example, one might infer from cart tracks in spilled
[16]    After we adopted gate-keeping standards for expert         macaroni salad that it had been on the floor a long
testimony, 35 evidence that failed to meet reliability standards   time, but one might also infer the opposite—that a sloppy
was rendered not only inadmissible but incompetent as              shopper recently did both. 46 Similarly, when injury or death
well. 36 Thus, an appellate court conducting a no-evidence         occurs without eyewitnesses and only meager circumstantial
review cannot consider only an expert's bare opinion, but          evidence suggests what happened, we cannot disregard other
must also consider contrary evidence showing it has no             meager evidence of equally likely causes. 47
scientific basis. 37 Similarly, review of an expert's damage
estimates cannot disregard the expert's admission on cross-         [20] Thus, when the circumstantial evidence of a vital fact
                                         38                        is meager, a reviewing court must consider not just favorable
examination that none can be verified.
                                                                   but all the circumstantial evidence, and competing inferences
 [17] Thus, evidence that might be “some evidence” when            as well.
considered in isolation is nevertheless rendered “no evidence”
when contrary evidence shows it to be incompetent. Again,
such evidence cannot be disregarded; it must be an exception                         D. Conclusive Evidence
either to the exclusive standard of review or to the definition
of contrary evidence.                                               [21]    [22] Next, Justice Calvert noted that Texas courts
                                                                   conducting a no-evidence review traditionally do not
                                                                   disregard contrary evidence that conclusively establishes the

            C. Circumstantial Equal Evidence                       opposite of a vital fact. 48 He argued that this is to some
                                                                   extent not a “true” no-evidence claim, as proponents may
                                                                   have to show not only that no evidence supports the verdict


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

but that the opposite was proved as a matter of law. 49          or allow *816 jurors to infer otherwise. 62 Evidence is
There are several types of conclusive evidence. First, an        conclusive only if reasonable people could not differ in their
appellate court conducting a legal sufficiency review cannot     conclusions, 63 a matter that depends on the facts of each
“disregard undisputed evidence that allows of only one           case.
logical inference.” 50 By definition, such evidence can be
viewed in only one light, and reasonable jurors can reach only    [26] There is another category of conclusive evidence, in
one conclusion from it. Jurors are not free to reach a verdict   which the evidence is disputed. Undisputed evidence and
contrary to such evidence; 51 indeed, uncontroverted issues      conclusive evidence are not the same—undisputed evidence
                                                                 may or may not be conclusive, and conclusive evidence may
*815 need not be submitted to a jury at all. 52
                                                                 or may not be undisputed.

Reviewing legal sufficiency in such cases encompasses
                                                                 Thus, for example, in Murdock v. Murdock, we found no
a general no-evidence review, because if some evidence
                                                                 evidence to support a verdict establishing the defendant's
supports the verdict then the contrary evidence was not
                                                                 paternity when blood tests conclusively proved he was not
“undisputed.” But the review does not stop there; the evidence
must also have only one logical inference. Undisputed            the child's father. 64 The evidence was directly disputed—the
evidence that reasonable jurors could disbelieve has two: (1)    child's mother testified she had conjugal relations with no one
it is true, or (2) it is not.                                    else during the relevant time. 65 Nevertheless, we held there
                                                                 was no evidence to support the paternity verdict because of
 [23] Most often, undisputed contrary evidence becomes           conclusive evidence to the contrary. 66
conclusive (and thus cannot be disregarded) when it concerns
physical facts that cannot be denied. Thus, no evidence          Similarly, in Texas & New Orleans Railroad Co. v. Compton,
supports an impaired-access claim if it is undisputed that       we found no evidence that a railroad's negligence caused an
access remains along 90 percent of a tract's frontage. 53        automobile to slam into the sixtieth car of a slow-moving
Evidence that a buyer believed a product had been repaired       train. 67 Again, the evidence was hotly disputed—while
is conclusively negated by an accompanying letter to             railroad witnesses testified that warning signs were in place
the contrary. 54 And an insured's liability has not been         at the crossing, the car's driver and a passenger testified they
determined by an “actual trial” if the insured did not appear,   saw nothing, and would have been able to stop if they had. 68
present evidence, or challenge anything presented by his         Nevertheless, we held there was no evidence to support the
opponent. 55                                                     claim because, if the driver could not see the side of a train
                                                                 before he hit it, he could not have seen a crossing sign
 [24] Undisputed contrary evidence may also become               either. 69
conclusive when a party admits it is true. Thus, a claimant's
admission that he was aware of a dangerous premises              Of course, there are few instances in which disputed evidence
condition is conclusive evidence he needed no warning about      is conclusive, and many instances in which undisputed
it. 56 Similarly, an ex-employee's admission that she obtained   evidence is not. As our sister court has noted, testimony
other employment may prove conclusively that she did not         by a paid informant is legally sufficient to support a
detrimentally rely on a defendant's promise to re-hire her. 57   conviction, even if “[t]wenty nuns testify that the defendant
And jurors may not find that an indictment was based on          was with them at the time, far from the scene of the
a defendant's misleading report when the district attorney       crime ... [and] [t]wenty more nuns testify that they saw the

admits it was his own mistake. 58                                informant commit the crime.” 70 But a more famous clerical
                                                                 hypothetical by Judge Learned Hand shows the opposite
 [25] It is impossible to define precisely when undisputed       limit:
evidence becomes conclusive. For example, an injured
employee's return to work may prove conclusively that an
                                                                   If, however, it were proved by twenty bishops that either
injury was not total, 59 or it may not. 60 Circumstances in        party, when he used the words [in a contract], intended
which a body is found may conclusively establish suicide, 61



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

  something else than the usual meaning which the law
   imposes upon them, he would still be held.... 71               Long before gross negligence had to meet a clear-and-
While jurors may generally believe either sinners or saints,      convincing burden, we recognized in Burk Royalty Co. v.
their discretion is limited when it is proved beyond question     Walls that no-evidence review of such findings had to include
that an “eyewitness” was actually far away in prison or totally   “all of the surrounding facts, circumstances, and conditions,
blind on the day of the crime.                              not just individual elements or facts.” 78 As then Chief
                                                            Justice Greenhill noted in concurring, speeding and running
 [27]    [28]      Proper legal-sufficiency review prevents a red light may not be legally sufficient evidence of gross
reviewing courts from substituting *817 their opinions      negligence if one's wife and daughter are bleeding to death
on credibility for those of the jurors, but proper review   in the back seat. 79 Reviewing courts assessing evidence of
also prevents jurors from substituting their opinions for   conscious indifference cannot disregard part of what a party
undisputed truth. When evidence contrary to a verdict is
                                                            was conscious of. 80
conclusive, it cannot be disregarded.

                                                                  For the same reasons, the exclusive standard of review has
                                                                  proven problematic in insurance bad-faith cases. Liability
           E. Clear–and–Convincing Evidence                       in *818 such cases requires proof that the insurer denied
                                                                  coverage after it became reasonably clear. 81 But that
 [29] Since the time of Justice Calvert's article, new claims
                                                                  standard will always be met if reviewing courts must
and burdens of proof have arisen that require additions
to the four types of no-evidence review Justice Calvert           disregard any evidence that coverage was unclear. 82
considered exhaustive. Beginning with the United States           Subsequent cases show that reviewing courts are in fact
Supreme Court's opinion in Jackson v. Virginia, appellate         looking at all the evidence to determine whether coverage was
courts have recognized that, while “one slender bit of            reasonably clear. 83
evidence” may be all a reviewing court needs to affirm a
verdict based on the preponderance of the evidence, a higher      This problem arises in other contexts as well. In
                                                        72        discrimination cases, discharged employees will never have
burden of proof requires a higher standard of review. As
we recently stated, the standard for legal sufficiency works in   to prove that the reason given for termination was a
tandem with the standard of review—“whenever the standard         pretext if no-evidence review must disregard that reason. 84
of proof at trial is elevated, the standard of appellate review   Government officials will never be entitled to immunity
must likewise be elevated.” 73 If the rule were otherwise,        if we consider only evidence suggesting they should have
legally sufficient evidence to support a preponderance-of-the-    acted differently. 85 And limitations will never run under the
evidence verdict would satisfy the higher burdens as well,        discovery rule if reviewing courts must disregard all evidence
thus rendering their differences meaningless. 74                  that claimants knew of their claims. 86

Accordingly, we have held that a legal sufficiency review         This is not to say a reviewing court may credit a losing party's
must consider all the evidence (not just that favoring            explanations or excuses if jurors could disregard them. For
the verdict) in reviewing cases of parental termination, 75       example, while an insurer's reliance on an expert report may
defamation, 76 and punitive damages. 77 In such cases, again,     foreclose bad faith recovery, 87 it will not do so if the insurer
evidence contrary to a verdict cannot be disregarded.             had some reason to doubt the report. 88 But a reviewing court
                                                                  cannot review whether jurors could reasonably disregard a
                                                                  losing party's explanations or excuses without considering
                                                                  what they were.
                F. Consciousness Evidence

 [30] Further, we have had to particularize legal-sufficiency
review in cases involving what a party knew or why it took a         III. Contrary Evidence That Must Be Disregarded
certain course, as they are not amenable to review under the
exclusive standard.



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

As trials normally focus on issues that jurors could decide        that the defendant's speed was 80 miles per hour, without
either way, reviewing *819 courts must disregard evidence          mentioning his own testimony to a speed half that. 94
contrary to the verdict far more often than they must consider
it. Just as no-evidence review that starts by disregarding          [34]    [35]   Nor is it necessary to have testimony
contrary evidence often must end up considering considerably       from both parties before jurors *820 may disbelieve
more, no-evidence review that begins by considering all the        either. Jurors may disregard even uncontradicted and
evidence must usually end up considering considerably less.
                                                                   unimpeached testimony from disinterested witnesses. 95
                                                                   Thus, an architect's uncontradicted testimony that he relied
Again, we do not presume to categorize all circumstances in
                                                                   on a 20–year warranty was not binding on jurors when the
which contrary evidence must be disregarded; a few examples
                                                                   bid specifications he prepared included only much shorter
serve to demonstrate that even under the inclusive standard,
viewing all the evidence in a light favorable to the verdict       warranties. 96 Nor was an insured's uncontradicted testimony
often requires that much of it be disregarded.                     about lost furnishings binding on jurors when the fire scene
                                                                   contained several indications of arson but few of burnt
                                                                   furniture. 97 Even uncontroverted expert testimony does not
                                                                   bind jurors unless the subject matter is one for experts
                  A. Credibility Evidence
                                                                   alone. 98
[31]     [32]   Jurors are the sole judges of the credibility of
the witnesses and the weight to give their testimony. 89 They      [36]        [37]       [38]      [39]     Of course, “[t]he jury's
may choose to believe one witness and disbelieve another. 90       decisions regarding credibility must be reasonable.” 99
Reviewing courts cannot impose their own opinions to the           Jurors cannot ignore undisputed testimony that is clear,
                                                                   positive, direct, otherwise credible, free from contradictions
contrary. 91
                                                                   and inconsistencies, and could have been readily
 [33] Most credibility questions are implicit rather than          controverted. 100 And as noted above, they are not free to
explicit in a jury's verdict. Thus, reviewing courts must          believe testimony that is conclusively negated by undisputed
assume jurors decided all of them in favor of the verdict if       facts. But whenever reasonable jurors could decide what
reasonable human beings could do so. Courts reviewing all          testimony to discard, a reviewing court must assume they did
the evidence in a light favorable to the verdict thus assume       so in favor of their verdict, and disregard it in the course of
that jurors credited testimony favorable to the verdict and        legal sufficiency review.
disbelieved testimony contrary to it. 92

For example, viewing the evidence in the light favorable to                             B. Conflicting Evidence
the verdict means that if both parties in a traffic accident
testify they had the green light, an appellate court must          [40]     [41]      It is the province of the jury to resolve conflicts
presume the prevailing party did and the losing party did          in the evidence. 101 Accordingly, courts reviewing all the
not. If the parties to an oral contract testify to conflicting     evidence in a light favorable to the verdict must assume
terms, a reviewing court must presume the terms were those         that jurors resolved all conflicts in accordance with that
asserted by the winner. When all the evidence is viewed in         verdict. 102
the light most favorable to the jury verdict, some of it must be
completely discounted. Though not disregarded at the outset,       Again, this has always been the case even in those cases
the end result is the same.                                        using the inclusive scope of review. For example, in such
                                                                   cases we have sometimes detailed only the evidence that
This has always been our practice in cases using the inclusive
                                                                   supported a jury's fraud finding. 103 We have affirmed a
scope of review. Thus, we have concluded that a bailee
                                                                   bad-faith verdict for legal sufficiency despite “significant
sold cotton without the bailor's consent, despite the former's
                                                                   evidence” that the insurer acted in *821 good faith. 104 We
denials, because the jury verdict favored the latter. 93 And we
                                                                   have found some evidence of lost profits, even though income
have affirmed a gross negligence verdict based on testimony
                                                                   tax returns showed the contrary. 105 And we have affirmed



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

a jury's negligence finding despite a defendant's evidence           and disregard all other inferences in their legal sufficiency
                                                      106            review.
asserting it could not have prevented the accident.

In none of these cases did we state that the scope of review
required us to disregard evidence contrary to the verdict;                          IV. Reconciling the Standards
instead, we started by considering the entire record in each.
But in each case we either discounted or never mentioned              [45] Having noted the dual lines of authority stating the
conflicting evidence contrary to the verdict because viewing         scope of no-evidence review, and the proper application and
the evidence in the light favorable to the verdict required us       exceptions to each, we turn to the question of which one is
to do so.                                                            correct. For the reasons *822 discussed below, we believe
                                                                     the answer is both.
Of course, it is not always clear whether evidence is
conflicting. Evidence is not conflicting just because the
parties cannot agree to it. For example, evidence that a
                                                                            A. Goals: The Standards Must Be The Same
hospital controlled a doctor's rotation and patient assignments
raises no material conflict with evidence that a different            [46] Whether a court begins by reviewing all the evidence
entity controlled the details of medical treatment, as only          or disregarding part in a legal-sufficiency review, there can
the latter is material in a malpractice case. 107 Similarly,         be no disagreement about where that review should end. If
evidence showing the terms of one loan does not conflict             the evidence at trial would enable reasonable and fair-minded
with undisputed evidence that the parties never reached an           people to differ in their conclusions, then jurors must be
agreement regarding the terms of another. 108                        allowed to do so. 112 A reviewing court cannot substitute its
                                                                     judgment for that of the trier-of-fact, so long as the evidence
 [42] But in every circumstance in which reasonable jurors           falls within this zone of reasonable disagreement. 113
could resolve conflicting evidence either way, reviewing
courts must presume they did so in favor of the prevailing            [47] Similarly, there is no disagreement about how a
party, and disregard the conflicting evidence in their legal         reviewing court should view evidence in the process of that
sufficiency review.                                                  review. Whether a reviewing court starts with all or only part
                                                                     of the record, the court must consider evidence in the light
                                                                     most favorable to the verdict, and indulge every reasonable
                  C. Conflicting Inferences                          inference that would support it. 114 But if the evidence allows
                                                                     of only one inference, neither jurors nor the reviewing court
 [43] Even if evidence is undisputed, it is the province of
                                                                     may disregard it. 115
the jury to draw from it whatever inferences they wish, so
long as more than one is possible and the jury must not
                                                                     Given these premises, it is no coincidence that the two
simply guess. Thus, in product liability cases jurors may find
                                                                     standards should reach the same result—indeed they must.
evidence of a defect from subsequent modifications, even
                                                                     Any scope of appellate review smaller than what reasonable
if there were plenty of other reasons for the changes. 109           jurors could believe will reverse some verdicts that are
Even if a defendant admits approaching an intersection from          perfectly reasonable; any scope of review larger than what
the wrong way on a one-way street, jurors may infer the              reasonable jurors could believe will affirm some verdicts that
plaintiff failed to keep a proper lookout, as that is one possible   are not.
inference from the accident itself. 110 Similarly, jurors may
infer that relatives tore down posters of a missing child to          [48] Further, the two must coincide if this Court is to
assist the child's father, even though another inference was         perform its constitutional duties. Although factual sufficiency
that the signs simply embarrassed them. 111                          has been the sole domain of the intermediate appellate courts
                                                                     in Texas since 1891, our jurisdiction has always included
 [44] Accordingly, courts reviewing all the evidence in a            legal sufficiency, as that is a question of law, not of fact. 116
light favorable to the verdict must assume jurors made all           Construing either standard to require us to do less would be
inferences in favor of their verdict if reasonable minds could,


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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

just as unconstitutional as construing either to allow us to do    opinions doing so usually cite to general no-evidence cases in
more.                                                              which no judgment n.o.v. was involved. 123

This is not to say judges and lawyers will always agree            The one exception in which both standards do not expressly
whether evidence is legally *823 sufficient. As discussed          appear is in the scope of review for summary judgments.
more fully below, reasonable people may disagree about             Here, there is only one standard—a reviewing court must
what reasonable jurors could or must believe. But once those       examine the entire record in the light most favorable to
boundaries are settled, any standard of review must coincide       the nonmovant, indulging every reasonable inference and
with those boundaries—affirming jury verdicts based on
                                                                   resolving any doubts against the motion. 124 Reviewing
evidence within them and reversing jury verdicts based on
                                                                   courts do not disregard the evidence supporting the motion;
evidence that is not. Any standard that does otherwise is
                                                                    *825 if they did, all summary judgments would be reversed.
improperly applied.

                                                                   In practice, however, a different scope of review applies
                                                                   when a summary judgment motion is filed without supporting
  B. Other Motions: The Standards Must Be The Same                 evidence. 125 In such cases, evidence supporting the motion
                                                                   is effectively disregarded because there is none; under the
 [49] Just as the scope of no-evidence review must coincide
                                                                   rule, it is not allowed. Thus, although a reviewing court must
with its goals, the scope of review should not depend upon the
                                                                   consider all the summary judgment evidence on file, in some
motion in which it is asserted. Judgment without or against
                                                                   cases that review will effectively be restricted to the evidence
a jury verdict is proper at any course of the proceedings
                                                                   contrary to the motion.
only when the law does not allow reasonable jurors to
decide otherwise. Accordingly, the test for legal sufficiency
                                                                   The standards for taking any case from the jury should be the
should be the same for summary judgments, directed verdicts,
                                                                   same, no matter what motion is used. If only one standard
judgments notwithstanding the verdict, and appellate no-
                                                                   were proper, we would not expect both to appear in cases
evidence review.
                                                                   reviewing directed verdicts, judgments notwithstanding the
                                                                   verdict, and summary judgments. But both do.
Our statements of the standard for reviewing a directed
verdict present the same mixed bag found with general no-
evidence review. We have most often used the exclusive
standard, stating that courts reviewing directed verdicts must         C. Federal Courts: The Standards Are The Same
consider only evidence supporting the nonmovant's case
                                                                   The federal courts have had a similar split of authority
and disregard all contrary evidence. 117 But we have also
                                                                   between the inclusive and exclusive standards for scope
stated that reviewing courts should use the inclusive standard,
                                                                   of review. But no longer—the United States Supreme
considering all the evidence in a light contrary to the directed
                                                                   Court recently concluded in Reeves v. Sanderson Plumbing
verdict. 118 And we have sometimes stated both, requiring
                                                                   Products, Inc. that the two tests are the same. 126
reviewing courts to consider all the evidence in a light
contrary to the directed verdict and then to disregard all
                                                                   Under Rule 50 of the federal rules of procedure, a court should
conflicting evidence that supports it. 119                         render judgment as a matter of law when “there is no legally
                                                                   sufficient evidentiary basis for a reasonable jury to find for
By contrast, cases concerning judgments non obstante
                                                                   that party on that issue.” 127 In deciding whether all or only
veredicto most often utilize the inclusive scope of review.
                                                                   part of the evidence should be considered, the Supreme Court
Beginning with the 1931 amendment authorizing trial judges
                                                                   stated:
to grant them, 120 we have generally reviewed such orders
by considering all the evidence in a light favorable to the
*824 verdict that was set aside. 121 In later years we               The Courts of Appeals have articulated differing
                                                                     formulations as to what evidence a court is to consider in
have sometimes adopted the exclusive standard, 122 but our
                                                                     ruling on a Rule 50 motion. Some decisions have stated
                                                                     that review is limited to that evidence favorable to the



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

  nonmoving party, while most have held that review extends                      the verdict only if it is so against the
  to the entire record, drawing all reasonable inferences in                     great weight and preponderance of the
  favor of the nonmovant.                                                        evidence that it is clearly wrong and
                                                                                 unjust. 131
     On closer examination, this conflict seems more
     semantic than real. Those decisions holding that review
     under Rule 50 should be limited to evidence favorable to       But there have always been exceptions to this distinction. 132
     the nonmovant appear to have their genesis in Wilkerson        As demonstrated in Parts II and III above, it is generally
     v. McCarthy 128 . In Wilkerson, we stated that “in passing     true that the result of legal-sufficiency review is to disregard
     upon whether there is sufficient evidence to submit an         contrary evidence, but there are exceptions when a reviewing
     issue to the jury we need look only to the evidence and        court cannot. It is not surprising that in drawing the general
     reasonable inferences which tend to support the case           distinction between legal and factual sufficiency, courts
                                                                    have not complicated that distinction by listing the several
     of” the nonmoving party. 129 But subsequent decisions
                                                                    exceptions in which the scope of review—though not the
     have clarified that this passage was referring to the
                                                                    standard of review—may overlap.
     evidence to which the trial court should give credence,
     not the evidence that the court should review. In the
                                                                    Second, it has been argued that the exclusive standard “is
     analogous context of summary judgment under Rule 56,
                                                                    an important prophylactic” against invasion of the jury's
     we have stated that the court must review the record
                                                                    province, as appellate judges are less likely to consider
     “taken as a whole.” And the standard for granting
                                                                    contrary evidence when they should not if the exclusive
     summary judgment “mirrors” the standard for judgment
     as a matter of law, such that “the inquiry under each is the   standard is used. 133 But if that is true, the opposite should
     same.” It therefore follows that, in entertaining a motion     also be the case—appellate courts are less likely to consider
     for judgment as a *826 matter of law, the court should         contrary evidence when they must (as shown in Part II) if the
                                                                    exclusive standard is used. No matter which standard is used,
      review all of the evidence in the record. 130
                                                                    appellate courts must take care not to consider or disregard
We address the Supreme Court's conclusion as to the
                                                                    too little or too much.
most appropriate standard below; the relevant point here
is its conclusion that differences between the inclusive and
                                                                     *827 Conversely, several factors appear to favor application
exclusive standards are more semantic than real.
                                                                    of the inclusive standard. First, when we have said “we
                                                                    must look only at that evidence which tends to support the
                                                                    judgment,” 134 we could not have been speaking literally;
    D. Objections: The Standards Are Not The Same                   no glasses filter evidence, and judges cannot abandon such
                                                                    judgments to law clerks or litigants. It is often hard to
While we have used the two standards for the scope of review
                                                                    say whether evidence does or does not support a verdict
interchangeably for many years in many different contexts,
several arguments suggest they are not the same.                    —the same facts may support different conclusions, 135 or
                                                                    may support one part of a verdict but not another. 136 Nor
First, the courts of appeals often use the two standards            can evidence supporting a verdict be identified by which
in illustrations of the difference between legal and factual        party offered it—parties depend on admissions and cross-
sufficiency, with the exclusive standard tied to the former and     examination during their opponent's case, and minimize
the inclusive standard to the latter:                               damaging evidence by presenting it during their own. As a
                                                                    practical matter, a court cannot begin to say what evidence
             When [reviewing] legal sufficiency,                    supports a verdict without reviewing it all.
             we consider only the evidence and
             inferences that tend to support the                    Second, an appellate court that begins by disregarding one
             award of damages and disregard                         party's evidence may strike many citizens as extending
             all evidence and inferences to the                     something less than justice for all. Concerns about open
             contrary.... When we review factual                    government and open courts suggest an appellate process
             sufficiency, we consider and weigh                     that considers all the evidence, though deferring to the jury's
             all of the evidence and will set aside                 verdict. While there is some dispute whether Lady Justice


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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

should wear a blindfold, 137 the metaphor was surely never                    Supreme Court will conclude that the
intended to suggest that justice disregards the facts.                        evidence supporting a finding of a
                                                                              vital fact has no probative force, and
In sum, the exclusive standard is helpful in recognizing                      in reaching the conclusion through
the distinctive roles of judge and jury, intermediate and                     application of the rule will thus hold,
supreme court. By contrast, the inclusive standard is helpful                 in effect, that the trial judge who
in recognizing what courts actually do, and must be seen to                   overruled a motion for instructed
do. Both are important; we should avoid choosing between                      verdict, the twelve jurors who found
them if we can.                                                               the existence of the vital fact, the three
                                                                              justices of the Court of Civil Appeals
                                                                              who overruled a “no evidence” point
                                                                              of error and four dissenting justices of
      E. Conclusion: The Standards Are The Same
                                                                              the Supreme Court are not men 138 of
As both the inclusive and exclusive standards for the scope                   “reasonable minds.” 139
of legal-sufficiency review have a long history in Texas, as
both have been used in other contexts to review matter-of-law     It is not hubris that occasionally requires an appellate court
motions, as the federal courts have decided the differences       to find a jury verdict has no reasonable evidentiary basis. As
between the two are more semantic than real, and as both—         Justice Frankfurter stated long ago:
properly applied—must arrive at the same result, we see no
compelling reason to choose among them.                                       Only an incompetent or a wilful judge
                                                                              would take a case from the jury
 [50]    [51] The key qualifier, of course, is “properly                      when the issue should be left to the
applied.” The final test for legal sufficiency must always                    jury. But since questions of negligence
be whether the evidence at trial would enable reasonable                      are questions of degree, often very
and fair-minded people to reach the verdict under review.                     nice differences of degree, judges of
Whether a reviewing court begins by considering all the                       competence and conscience have in
evidence or only the evidence supporting the verdict, legal-                  the past, and will in the future, disagree
sufficiency review in the proper light must credit favorable                  whether proof in a case is sufficient
evidence if reasonable jurors could, and disregard contrary                   to demand submission to the jury. The
evidence unless reasonable jurors could not.                                  fact that [one] thinks there was enough
                                                                              to leave the case to the jury does not
While judges and lawyers often disagree about legal                           indicate that the other [is] unmindful
sufficiency in particular cases, *828 the disagreements are                   of the jury's function. The easy but
almost always about what evidence jurors can or must credit                   timid way out for a trial judge is to
and what inferences they can or must make. It is inevitable                   leave all cases tried to a jury for jury
in human affairs that reasonable people sometimes disagree;                   determination, but in so doing he fails
thus, it is also inevitable that they will sometimes disagree                 in his duty to take a case from the jury
about what reasonable people can disagree about. This is not                  when the evidence would not warrant
a new problem; Justice Calvert noted it almost fifty years ago:               a verdict by it. A timid judge, like a
                                                                              biased judge, is intrinsically a lawless
            The rule as generally stated is that if
                                                                              judge. 140
            reasonable minds cannot differ from
            the conclusion that the evidence lacks
            probative force it will be held to be
            the legal equivalent of no evidence.                                  V. Application to the Facts
            The application of the rule can lead
            to strange results. It is theoretically               It remains to apply the scope of review to the facts presented.
            possible, and sometimes not far from
            actual fact, that five members of the



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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

 [52] A majority of the court of appeals affirmed the verdict      Second, ending a ditch at a neighbor's property line may
for the Wilsons, finding legally sufficient evidence that the      be evidence that a defendant was substantially certain of
City knew increased flooding on the Wilsons' property was          the result in some cases, but not in the context of this
substantially certain to occur. 141 The majority pointed to        one. City witnesses admitted knowing development would
the following proof. First, the Wilsons' expert testified that     increase runoff at the head of this drainage system, but not
                                                                   flooding at its foot. Calculating the effect of detention ponds
the revised plan was certain to *829 create flooding. 142
                                                                   and absorption in a grassy drainage ditch forty-five feet
Second, as the City admittedly knew that development would
                                                                   wide and over two hundred yards long required hydrological
increase runoff and the Sebastian ditch would channel it
                                                                   formulas, computer models, and mathematical calculations.
toward the Wilsons, so it knew “with absolute certainty”
                                                                   The omission of the ditch across the Wilsons' property
that flooding would be the result. 143 Third, the City “did        obviously raised concerns that the City investigated, but was
not explain” why the Master Plan required a drainage ditch         no evidence that the City knew the advice it received in
across the Wilsons' property but the revised plan did not,         response was wrong.
thus allowing jurors to infer that the City knew this omission
would cause flooding. 144                                          The Wilsons also point to a letter Sebastian's attorney wrote
                                                                   the City demanding indemnity in case the new ditch flooded
 [53] Of course, the City did explain why it approved the new      the Wilsons. But attorneys must protect a client from potential
plan—because three sets of engineers said the omitted ditch        liability whether it is *830 real or imagined—and justly so.
was unnecessary—but the court felt compelled by the scope          In the letter, the attorney never purports to be an expert in
of review to disregard that evidence.                              hydrology, or cite the opinions of anyone who was. This letter
                                                                   may have required the City to investigate, but again is no
For several of the reasons stated earlier, we believe the court    evidence it knew the advice it received was wrong. 146
of appeals did not properly apply the scope of review. The
critical question in this case was the City's state of mind—       Our concurring colleagues believe reasonable jurors could
the Wilsons had to prove the City knew (not should have            nevertheless disregard what all the engineers certified
known) that flooding was substantially certain. A reviewing        because the City had a financial incentive to believe them
court cannot evaluate what the City knew by disregarding           rather than pay the Wilsons. Of course, defendants have a
most of what it was told.                                          financial incentive to avoid paying damages in every case;
                                                                   if that incentive alone is some evidence of liability, then
 [54] Moreover, when a case involves scientific or technical       plaintiffs create enough evidence to go to the jury every time
issues requiring expert advice (as this one does), jurors cannot   they file suit.
disregard a party's reliance on experts hired for that very
purpose without some evidence supplying a reasonable basis         But more important, this ignores what the Wilsons had to
             145
for doing so.     Here, it was uncontroverted that three sets of   prove—not that the City might have disbelieved the engineers'
engineers certified that the revised plans met the City's codes    reports, but that it did. This requires evidence of “objective
and regulations—and thus would not increase downstream             indicia of intent” showing the City knew identifiable harm
flooding. The same firm that drew up the original Master Plan      was occurring or substantially certain to result. 147 Jurors'
certified the revised one; unless the City had some reason to      doubts about the engineers' reports or the City's motives could
know the first certification was true and the second one was       not supply them with objective indicia that the City knew
false (of which there was no evidence), there was only one         flooding would occur. Constitutional concerns about the roles
logical inference jurors could draw.                               of judge and jury do not allow either to make such evidence
                                                                   up.
None of the evidence cited by the court of appeals showed
the City knew more than it was told by the engineers. The          We agree with the court of appeals that the Wilsons presented
Wilsons' expert testified that flooding was (in his opinion)       some evidence that the City damaged their property, and that
inevitable, but not that the City knew it was inevitable. The      in drawing up and approving drainage plans it was acting
Wilsons' expert gave no opinion on the latter point.               for a public purpose. The missing piece in the evidence
                                                                   here is proof that the City knew the plans it approved were
                                                                   substantially certain to increase flooding on the Wilsons'


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           12
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

properties. While the City certainly knew that fact after the    holds that the jury was required to believe the City's testimony
flooding started, the Wilsons never pleaded or submitted         that it relied on the engineers' assurances and thus did not
to the jury any takings theory other than the City's initial     know flooding was substantially certain to occur, stating
approval.                                                        that when a case requires expert testimony “jurors cannot
                                                                 disregard a party's reliance on experts hired for that very
Crediting all favorable evidence that reasonable jurors could    purpose without some evidence supplying a reasonable basis
believe and disregarding all contrary evidence except that       for doing so.” 168 S.W.3d at 829. Even if this were an
which they could not ignore, we hold there was no evidence       appropriate review standard—which it hasn't been until today
the City's approval of the revised drainage plan was an          —I believe the jury had a reasonable basis upon which
intentional taking.                                              to disregard the City's professed reliance; the City had a
                                                                 financial incentive to disclaim knowledge of the flooding,
Accordingly, we reverse the court of appeals' judgment           and the Wilsons presented some evidence that the City had
against the City under article I, section 17 of the Texas        independent knowledge flooding was substantially certain to
Constitution. Because the court of appeals declined to address   occur. In my view, the jury was the proper body to weigh the
the jury's alternate verdict for the Wilsons on a claim under    witnesses' credibility and resolve these disputed fact issues. I
the Texas Water Code, we remand the case to that court to        nevertheless agree that the City cannot be liable for a taking in
determine that issue.                                            this case because I believe that a city's mere act of approving a
                                                                 private development plan cannot constitute a taking for public
                                                                 use. Accordingly, I concur in the Court's judgment but not its
                                                                 reasoning.
Justice O'NEILL filed a concurring opinion in which Justice
MEDINA joined.

Justice JOHNSON did not participate in the decision.                                            I

                                                                 Questions of intent are generally proved only by
Justice O'NEILL, joined by Justice MEDINA, concurring.
                                                                 circumstantial evidence; as the court of appeals in this
The Court does an excellent job of explaining the appropriate
                                                                 case aptly noted, “defendants will rarely admit knowing
scope of no-evidence review: the reviewing court “must
                                                                 to a substantial certainty that given results would follow
view the evidence in the light favorable to the verdict,
                                                                 from their actions,” and therefore the jury must be “free to
crediting favorable evidence if reasonable jurors could, and
                                                                 discredit defendants' protestations that no harm was intended
disregarding contrary evidence unless reasonable jurors could
                                                                 and to draw inferences necessary to establish intent.” 86
not.” 168 S.W.3d at 807. I agree with this standard and join
                                                                 S.W.3d 693, 704. I agree with the Court that the jury's
Parts I through IV of the Court's opinion. But I cannot join
                                                                 ability to disbelieve the City's protestations is not itself
Part V, because the Court misapplies the standard that it so
                                                                 “evidence of liability.” 168 S.W.3d at 830. Instead, the jury's
carefully *831 articulates by crediting evidence the jury
                                                                 ability to weigh the witnesses' credibility means that the
could reasonably disregard.
                                                                 City's testimony did not conclusively establish its lack of
                                                                 liability. Because liability is not conclusively negated, we
The City of Keller's Master Drainage Plan required it
                                                                 must examine the record to see if there is legally sufficient
in part to condemn a 2.8–acre drainage easement on the
                                                                 evidence from which the jury could infer that the City knew
Wilson property for construction of an earthen channel
                                                                 flooding was substantially certain to occur. I would hold that
forty-five feet wide and five feet deep that would funnel
                                                                 the evidence of intent that was presented in this case allowed
water from the adjoining Sebastian property over the
                                                                 the jury to draw such an inference.
Wilson property into the Little Bear Creek Watershed. The
City chose not to proceed with this portion of the plan,
                                                                 At trial, the Wilsons presented evidence that the City
though, claiming reliance on engineers' assurances that the
                                                                 had independent sources of knowledge that flooding was
developers' installation of retention ponds on neighboring
                                                                 substantially certain to occur. First, they demonstrated that
land could prevent flooding. The drainage channel that was
                                                                 the developers' plan itself was flawed. Rather than incorporate
actually built ended at the edge of the Sebastian property and
                                                                 a drainage ditch running across the Wilson property, as the
funneled water directly onto the Wilsons' land, destroying
                                                                 City's Master Plan required, the developers' plan ended the
eight acres of farmland worth almost $300,000. The Court


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           13
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

drainage ditch abruptly at the edge of the Wilson property.       that the developments did not increase the velocity of water
The Wilsons' expert testified that the plan's implementation      or the flow of water” onto the neighboring property. 86
would necessarily “increase the volume and flow of water          S.W.3d at 706. But the Wilsons disputed whether the City's
across the Wilson property from the rate of fifty-five cubic      protestations were credible, pointing out that the City had a
feet per second to ninety-three cubic feet per second.” *832      powerful incentive to profess a lack of knowledge through
86 S.W.3d at 703. Second, the City was aware that water           reliance on the engineers' assurances because it would then
flowed across the Wilson property before the development          avoid the considerable expense of compensating the Wilsons
commenced, and, as the court of appeals pointed out, the          for the property that would otherwise have been condemned
City's Director of Public Works admitted that the City knew       under the Master Drainage Plan. See id. at 705.
the development would increase the water's flow and velocity;
specifically, he testified that “the City knew the upstream       Moreover, the Court's conclusion that juries cannot disregard
water would be absorbed less and would flow faster due to         a party's reliance on expert opinions is not consistent with our
the removal of trees and vegetation from the developments         jurisprudence. The Court cites two cases for this proposition,
and from the forty-five-foot-wide earthen channel” that ended     but neither supports the Court's analysis; instead, both cases
at the Wilson property's edge. Id. at 705. Finally, there         support the conclusion that the jury, as the finder of fact,
was evidence that the City received a letter warning that         should appropriately resolve factual disputes regarding a
the developers' plan would subject the Wilson property to         party's reliance on hired experts. Provident Am. Ins. Co. v.
flooding.                                                         Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); State Farm
                                                                  Lloyds v. Nicolau, 951 S.W.2d 444, 448–50 (Tex.1997).
While I believe there is some evidence that the City knew
flooding was substantially certain to occur, there is also        In Castañeda, a bad-faith insurance case, there was no
some evidence that it did not. City officials testified that      question that the insurer had relied on an expert's assurances
they relied on the representations of engineers who assured       and thus no dispute about whether the *833 jury could
them retention ponds could substitute for a drainage easement     have disregarded that evidence. Castañeda, 988 S.W.2d
and the Wilson property would not be damaged. If the jury         at 194–95. In that case, we performed a traditional legal
accepted this evidence as true, I agree that the intent element   sufficiency analysis and concluded there was no evidence that
would be negated, which would preclude the City's takings         the defendant acted in bad faith. Id. at 194. We did state that
liability. But I do not agree that the jury was bound to          reliance on an expert's opinion will not preclude a finding
accept the City's testimony as true. The Court itself notes       of bad faith if the expert's opinion was “unreliable and the
that jurors “may choose to believe one witness and disbelieve     insurer knew or should have known that to be the case.” Id.
another,” and that “[c]ourts reviewing all the evidence in a      However, we did not hold that the jury must credit a party's
light favorable to the verdict thus assume that jurors credited   testimony that it relied on an expert.
testimony favorable to the verdict and disbelieved testimony
contrary to it.” 168 S.W.3d at 819. This statement mirrors our    We reiterated this point in Nicolau, another bad-faith
prior jurisprudence, which has long provided that a jury “has     insurance case. There, the Court noted “we have never held
several alternatives available when presented with conflicting    that the mere fact that an insurer relies upon an expert's report
evidence” because it “may believe one witness and disbelieve      to deny a claim automatically forecloses bad faith recovery as
others,” “may resolve inconsistencies in the testimony of any     a matter of law,” and again concluded that purported “reliance
witness,” and “may accept lay testimony over that of experts.”    upon an expert's report, standing alone, will not necessarily
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986)            shield” the defendant from liability. Nicolau, 951 S.W.2d at
(citations omitted).                                              448. The Court conceded that “[w]ere we the trier of fact in
                                                                  this case, we may well have concluded that [the insurer] did
As the Court itself states, jurors are required to credit         not act in bad faith,” but concluded that the “determination is
undisputed testimony only when it is “clear, positive,            not ours to make” because “the Constitution allocates that task
direct, otherwise credible, free from contradictions and          to the jury and prohibits us from reweighing the evidence.”
inconsistencies, and could have been readily controverted.”       Id. at 450 (citing TEX. CONST. art. I, § 15, art. V, §§ 6, 10).
168 S.W.3d at 820. The City's testimony does not meet this
standard. The City Manager did testify that the City “would       The same is true in this case. The jury was not required to
not have approved the developments unless [it was] assured        believe that the City did not know flooding was substantially



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            14
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

certain to occur because it relied on assurances to the             resulted in the taking or damaging of plaintiffs' property,
contrary; as a reviewing Court, we should “assume that jurors       and which acts were the proximate cause of the taking or
credited testimony favorable to the verdict and disbelieved         damaging of such property.” State v. Hale, 136 Tex. 29,
testimony contrary to it.” 168 S.W.3d at 819. Such credibility      146 S.W.2d 731, 736 (1941) (emphasis added). In this case,
determinations are uniquely suited and constitutionally             flooding resulted from the developers' defective drainage
committed to the fact finder. See TEX. CONST. art. I, § 15,         design, not from the City's approval of the plat; thus, the City's
art. V, § 6; see also Nicolau, 951 S.W.2d at 450.                   approval was not the proximate cause of the damage to the
                                                                    Wilson property.

                                                                    Other courts, faced with similar facts, have also concluded
                               II
                                                                    that a governmental entity cannot be liable for a taking
Although I disagree with the Court's conclusion that the jury       when its only action is to approve a private development
was required to credit the City's testimony, I agree with           plan. See Phillips v. King County, 136 Wash.2d 946, 968
its judgment in the City's favor because, in my view, the           P.2d 871, 879 (1998); see also Pepper v. J.J. Welcome
City's mere approval of the private development plans did not       Constr. Co., 73 Wash.App. 523, 871 P.2d 601, 606 (1994).
result in a taking for public use, as the constitutional standard   In Phillips, the Washington Supreme Court observed that
requires for a compensable taking. TEX. CONST. art. I, §            there is no public aspect to a private development and
17. The City did not appropriate or even regulate the use           concluded that “[i]f the county or city were liable for the
of the Wilsons' land, nor did it design the drainage plan for       negligence of a private developer, based on approval under
the proposed subdivisions. Instead, the City merely approved        existing regulations, then the municipalities, and ultimately
subdivision plans designed by private developers, and that          the taxpayers, would become the guarantors or insurers for the
design included inadequate drainage capabilities. The City          actions of private developers whose development damages
argues, and I agree, that its mere approval of private plans did    neighboring properties.” Phillips, 968 P.2d at 878. The court
not transfer responsibility for the content of those plans from     in Pepper similarly examined an inverse condemnation claim
the developers to the City. Municipalities review subdivision       based upon a county's approval of private developments with
plats “to ensure that subdivisions are safely constructed and       defective drainage plans; it, too, concluded that the county's
to promote the orderly development of the community.” City          approval did not cause the resultant flooding and did not
of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985);             result in an unconstitutional taking. Pepper, 871 P.2d at 606.
see TEX. LOC. GOV'T CODE § 212.002. Such a review                   The court noted that the flooding was “not the result of the
is intended to protect the city's residents; it is not intended     County appropriating or regulating their use of the land,” and
to transfer responsibility for a flawed subdivision design          held that “[t]he fact that a county regulates development and
from the developers to the municipality. See, e.g., City of         requires compliance with road and drainage restrictions does
Round Rock, 687 S.W.2d at 302; see also Cootey v. Sun               not transform a private development into a public project.”
Inv., Inc., 68 Haw. 480, 718 P.2d 1086, 1091 (1986) (holding        Id. The court concluded that because “land use regulation
that “[t]he permit process by which the County approves             of [the plaintiffs'] property did not cause the damages, no
or disapproves the development of a proposed subdivision            inverse condemnation was involved.” Id. I am persuaded by
reflects an effort by government to require the developer           the reasoning of the courts in Phillips and Pepper, and would
to meet his responsibilities under the subdivision rules,           similarly conclude that the City's plat approval in this case did
regulations, and laws,” and that “the primary responsibility of     not amount to an unconstitutional taking as a matter of law.
providing an adequate and safe development rests with ... the
developer, and not with the County”).                               The court of appeals in this case advanced an alternative
                                                                    reason for affirming the trial court's judgment, suggesting that
Because the primary responsibility for a development's design       even if the City could not be liable for merely approving
rests with the developer, *834 and because the plat-                a subdivision plat, it could nevertheless be held liable for
approval process does not transfer such responsibility to the       failing to condemn a drainage easement across the Wilson
municipality, mere plat approval cannot be a basis upon             property. 86 S.W.3d at 707. The court of appeals stated
which to predicate takings liability. We have held that, to         that “the City chose not to condemn any of the Wilson
be liable for a taking, a governmental entity must “perform         property,” but instead “allow[ed] the water flowing from
certain acts in the exercise of its lawful authority ... which      the Sebastian easement to discharge, uncontrolled, across the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              15
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

                                                                  “[a] person whose property is injured by an overflow of water
Wilson property.” Id. As noted above, however, it was the
developers' plan—not the City's actions—that allowed the          caused by an unlawful diversion or impounding has remedies
water to flood the Wilson property. Because the City's action     at law and in equity and may recover damages occasioned
did not cause the flooding, I disagree that the City's failure    by the overflow”). Because the developers' design of the plat
to condemn an easement is relevant to takings liability. If       —not the City's approval—caused the flooding damage in
the City were responsible for the flooding but chose not          this case, I would hold that the City cannot be held liable for
to condemn the property, it might be subject to inverse-          an unconstitutional taking under Article I, Section 17 of the
condemnation liability. See Tarrant County Reg'l Water Dist.      Texas Constitution.
v. Gragg, 151 S.W.3d 546, 554 (Tex.2004) (“When the
government takes private property without first paying for it,
the owner may recover damages for inverse condemnation.”).                                      III
However, if a governmental entity's actions are not the *835
“proximate cause of the taking or damaging” of the property,      Because I believe the Court fails to give due regard to the
then the entity cannot be liable for a taking. Hale, 146 S.W.2d   jury's right to make credibility determinations, I cannot join
at 736. Accordingly, the entity need not condemn property         Part V of the Court's opinion. But because I conclude that
merely because a private entity is causing damage. This rule      the City's mere act of approving a private development plan
does not leave owners of flooded property without a remedy;       did not cause the Wilson property to be “taken, damaged or
when a private development floods neighboring land, the           destroyed for or applied to public use,” TEX. CONST. art. I,
owner of the damaged property will ordinarily have recourse       § 17, I agree that the City cannot be held liable for a taking in
against the private parties causing the damage. See TEX.          this case. Accordingly, I concur in the Court's judgment.
WATER CODE § 11.086(a), (b) (providing that “[n]o person
may divert or impound the natural flow of surface waters in
                                                                  All Citations
this state ... in a manner that damages the property of another
by the overflow of the water diverted or impounded” and that      168 S.W.3d 802, 48 Tex. Sup. Ct. J. 848


Footnotes
1      The City of Fort Worth asserts in an amicus brief that in 2001 alone it approved 325 subdivision plats creating 5,857
       residential lots within its extraterritorial jurisdiction, which of course excludes surrounding communities.
2      Evidence at trial and briefs by amici indicate that cities normally acquire title to these easements to ensure they are
       properly mowed and maintained after the developers' departure.
3      TEX. CONST. art. I, § 17; City of Dallas v. Jennings, 142 S.W.3d 310, 313–14 (Tex.2004).
4      86 S.W.3d 693, 715, 717.
5      Id. at 700.
6      See, e.g., Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (per curiam); Bradford v. Vento, 48 S.W.3d
       749, 754 (Tex.2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); Wal–Mart Stores, Inc. v. Gonzalez, 968
       S.W.2d 934, 936 (Tex.1998); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Burroughs Wellcome
       Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Holt
       Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992); Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Havner
       v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990);
       Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex.1989) (per curiam); Brown v. Edwards Transfer Co., 764 S.W.2d 220,
       223 (Tex.1988); City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987); King v. Bauer, 688 S.W.2d 845, 846
       (Tex.1985); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400,
       401 (Tex.1981) (per curiam); Holley v. Adams, 544 S.W.2d 367, 370 (Tex.1976); Garza v. Alviar, 395 S.W.2d 821, 823
       (Tex.1965); Wininger v. Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912).
7      See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Associated Indem. Corp. v. CAT
       Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.1998); State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40
       (Tex.1998); Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Merrell Dow
       Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262
       (Tex.1983); Burk Royalty v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970);




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            16
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

       De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 97 (1955); Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d
       497, 498 (1952).
8      Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Bostrom Seating, Inc. v. Crane Carrier Co., 140
       S.W.3d 681, 684 (Tex.2004); Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); La.-Pac. Corp. v. Andrade,
       19 S.W.3d 245, 247 (Tex.1999); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998); Brown v. Bank of Galveston, Nat'l
       Ass'n, 963 S.W.2d 511, 513 (Tex.1998).
9      See, e.g., Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Szczepanik v. First
       S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); compare Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303
       S.W.2d 359, 363 (1957) (“We may consider only that evidence, if any, which, viewed in its most favorable light, supports
       the jury findings, and we must disregard all evidence which would lead to a contrary result.”) (emphasis added), with
       Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 298 S.W.2d 79, 81 (1956) (“[T]he duty of this Court [is] to examine and
       consider all of the evidence bearing on the controlling issues, and having done so to decide whether there is evidence
       of probative value to support the answers made by the jury to the issues.”) (quotation omitted) (emphasis added), and
       Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914) (“[W]e must reject all evidence favorable to the plaintiffs
       in error, and consider only the facts and circumstances which tend to sustain the verdict.... In considering this question,
       we must take into account all of the facts and circumstances attending the transaction.”).
10     See, e.g., W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 159–62 (2002); William V. Dorsaneo,
       III, Judges, Juries, & Reviewing Courts, 53 SMU L.R. 1497, 1498, 1507–11 (2000); Phil Hardberger, Juries Under Siege,
       30 ST. MARY'S L.J. 1, 40–41 (1998). But see William Powers, Jr., Judge & Jury in the Texas Supreme Court, 75 TEX.
       L.REV. 1699, 1699–1700, 1704–19 (1997) (concluding the Court is not changing the no-evidence standard of review but
       is moving away from broad definitions of duty and toward particularized definitions of duty).
11     Robert W. Calvert was an associate justice of this Court from 1950 to 1960, and Chief Justice from 1961 to 1972.
12     Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960).
13     Id. at 361.
14     “Most of what has been said here is repetitious of what has been said before in the cited cases and articles. The purpose
       of the writer here has been to try to bring former writings on the subject into compact form and under somewhat closer
       analysis.” Id. at 371.
15     Id. at 362–63.
16     See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Marathon Corp. v. Pitzner, 106 S.W.3d 724,
       727 (Tex.2003) (per curiam); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998); Mar. Overseas
       Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997);
       Anderson v. City of Seven Points, 806 S.W.2d 791, 795 n. 3 (Tex.1991); Cecil v. Smith, 804 S.W.2d 509, 510 n. 2
       (Tex.1991); Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990).
17     Calvert, supra note 12, at 364.
18     See In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002); Uniroyal, 977 S.W.2d at 340; Triton Oil & Gas Corp. v. Marine
       Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).
19     Calvert, supra note 12, at 364 (“If there is an absolute absence of evidence of a vital fact ... an appellate court has no
       occasion to concern itself with an abstract rule such as how minds of reasonable men might view the situation.”).
20     New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158–59 (Tex.2004); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114
       (Tex.2000); Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877–78 (1912).
21     Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.2002) (considering remarks in context of series of talk-show programs);
       Turner, 38 S.W.3d at 115 (holding defamation includes story in which details are right but gist is wrong).
22     Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004).
23     DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex.1999).
24     Tiller v. McLure, 121 S.W.3d 709, 714 (Tex.2003) (per curiam); see also Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84
       S.W.3d 604, 610–11 (Tex.2002); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex.1999).
25     See George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 852–53 (Tex.App.-Fort Worth 1994) (holding that efforts to
       pressure deaf-mute consumer to buy car were legally sufficient evidence of intentional infliction), rev'd on other grounds,
       900 S.W.2d 337, 338 (Tex.1995).
26     See Tiller, 121 S.W.3d at 714 (holding efforts to pressure widow of contracting party to complete project were legally
       insufficient evidence of intentional infliction).




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27     See, e.g., id. at 713–14 (discussing contrary evidence showing defendant's reasonable concerns about timeliness of
       plaintiff's work); Sears, 84 S.W.3d at 612 (discussing contrary evidence that defendant believed claimant was involved
       in suspicious dealings).
28     Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684, 685 (Tex.2004) (holding no evidence supported defect
       as comments from deposition “were read out of context”).
29     Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex.2004) (citing Henry v. Phillips,
       105 Tex. 459, 151 S.W. 533, 538 (1912)). This rule was changed for hearsay evidence in 1983. See TEX.R. EVID. 802
       (“Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.”).
30     Tex. & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4, 6 (1903).
31     Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002) (holding defamation was not in course and scope
       of employment as duties required employee to cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v.
       Van Cleave, 468 S.W.2d 354, 360 (Tex.1971) (holding truck driver was not in course of employment during social visit
       to his father).
32     Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779, 782–83 (1949) (affirming directed verdict against malpractice claim as
       inadequate expert testimony from doctor of same school or practice as defendant rendered proof legally insufficient).
33     See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex.1996).
34     See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499–500 (Tex.1995) (holding opinion that spray caused frostbite
       was legally insufficient as it assumed absence of redness when plaintiff admitted the contrary); Roark v. Allen, 633 S.W.2d
       804, 809 (Tex.1982) (holding opinion that physician should have warned of possible skull fracture was legally insufficient
       as it assumed physician was aware of fracture when there was no proof he was).
35     See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995) (adopting reasoning of Daubert v.
       Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
36     Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714, 720 (Tex.1997).
37     Id. at 711, 724–30.
38     Kerr–McGee Corp. v. Helton, 133 S.W.3d 245, 254–57 (Tex.2004).
39     Calvert, supra note 12, at 364.
40     Id. at 364–65.
41     Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (holding evidence that truck caught fire unaccompanied by
       proof identifying any defect did not exceed a scintilla, as jurors would have to guess cause); Marathon Corp. v. Pitzner,
       106 S.W.3d 724, 729 (Tex.2003) (per curiam); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997); W.
       Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 900 (Tex.1937); Calvert, supra note 12, at 365.
42     Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991); see also Litton Indus. Prods., Inc.
       v. Gammage, 668 S.W.2d 319, 324 (Tex.1984) (citing Tex. Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex.1968)).
43     Lozano, 52 S.W.3d at 167.
44     Calvert, supra note 12, at 365.
45     Id.
46     Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex.1998).
47     See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); McCann, 99 S.W.2d at 900.
48     Calvert, supra note 12, at 363–64. But other commentators disagree. See Powers, supra note 10, at 1703–10. We have
       held that a “conclusively and as a matter of law” point may be asserted under a “no evidence” point. O'Neil v. Mack
       Trucks, Inc., 542 S.W.2d 112, 113 (Tex.1976). And the cases in this section note that conclusive proof is often asserted
       by parties that do not carry the burden of proof. See also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per
       curiam) (court must first examine record for evidence supporting verdict, ignoring all evidence to the contrary; if there is no
       such evidence, the court then examines the entire record to see if the contrary finding is established as a matter of law).
49     Calvert, supra note 12, at 363–64. But see, e.g., Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex.1991) (“Cecil's points
       that (1) there was no evidence to support the findings and (2) the contrary of each finding was established as a matter
       of law will hereinafter collectively be referred to as her “no evidence” points.”).
50     St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519–20 (Tex.2002) (plurality op.) (quoting Universe Life Ins. Co. v. Giles, 950
       S.W.2d 48, 51 n. 1 (Tex.1997)).
51     Tex. & N.O.R Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528, 530 (1947); see also Prudential Ins. Co. of Am. v. Krayer,
       366 S.W.2d 779, 783 (Tex.1963) (finding evidence of suicide undisputed after disregarding disputed portion of facts).




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52     Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517,
       523 (1956) (“[T]he trial court is required to submit only controverted issues. No jury finding is necessary to establish
       undisputed facts.”); Clark v. Nat'l Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947) ( “Uncontroverted
       questions of fact need not be and should not be submitted to the jury for its determination.”); S. Underwriters v. Wheeler,
       132 Tex. 350, 123 S.W.2d 340, 341 (Tex.1939).
53     County of Bexar v. Santikos, 144 S.W.3d 455, 460–61 (Tex.2004).
54     PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 97–98 (Tex.2004).
55     State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex.1998).
56     Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709–10 (Tex.2003) (per curiam).
57     See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 930 (Tex.1996).
58     King v. Graham, 126 S.W.3d 75, 78–79 (Tex.2003) (per curiam) (holding no evidence supported malicious prosecution
       claim as district attorney admitted prosecution was due to item he overlooked rather than any false statements by
       defendants).
59     Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962) (return to regular job in which use of hand was required
       conclusively established claimant did not suffer total loss of use).
60     Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309–10 (Tex.1986) (return to work did not conclusively establish
       injury was not total as claimant could not do regular work and employer voluntarily accommodated her with lesser duties).
61     See, e.g., Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex.1963).
62     See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 552 (Tex.1976).
63     Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340 (Tex.1998); Triton Oil & Gas Corp. v. Marine Contractors
       & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982).
64     811 S.W.2d 557, 560 (Tex.1991).
65     Id. at 558.
66     Id. at 560. In defense of jurors, it should be noted that the trier-of-fact in Murdock was a judge.
67     135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).
68     Id.
69     Id.
70     Clewis v. State, 922 S.W.2d 126, 133 n. 12 (Tex.Crim.App.1996) (en banc) (citation omitted).
71     Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911).
72     443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
73     Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).
74     Our sister court reviews the legal sufficiency of criminal convictions by considering “all evidence which the jury was
       permitted, whether rightly or wrongly, to consider” in the light most favorable to the prosecution. Moff v. State, 131 S.W.3d
       485, 488 (Tex.Crim.App.2004); see also Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005).
75     In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002).
76     Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).
77     Garza, 164 S.W.3d at 627.
78     616 S.W.2d 911, 922 (Tex.1981).
79     Id. at 926 (Greenhill, C.J., concurring).
80     See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234–35 (Tex.2004).
81     Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55–56 (Tex.1997).
82     See id. at 51 (noting same problem with previous test whether insurer had reasonable basis for denying claim).
83     See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262–63 (Tex.2002) (finding no evidence of bad faith based
       in part on defendant's correspondence showing misunderstanding regarding settlement terms); State Farm Fire & Cas.
       Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998)(affirming bad-faith verdict after noting that insurer gave contradictory
       reasons for not interviewing potential arsonists); Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 330 (Tex.App.-Corpus
       Christi 2004, pet. filed) (finding some evidence of bad faith because, though insurer showed hospital stymied its efforts to
       obtain records, insurer failed to seek same information from other sources); Allstate Tex. Lloyds v. Mason, 123 S.W.3d
       690, 704–06 (Tex.App.-Fort Worth 2003, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer
       reasonably relied on expert report); Allison v. Fire Ins. Exch., 98 S.W.3d 227, 249–50 (Tex.App.-Austin 2002, pet. granted,
       judgm't vacated w.r.m.) (affirming bad-faith verdict after reviewing insurer's reasons for delay and insured's responsive



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       evidence); Oram v. State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin 1998, no pet.) (reversing bad-faith verdict
       for legal insufficiency because insurer's interpretation of exclusion was reasonable though incorrect).
84     Wal–Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex.2003) (per curiam) (noting liability may be established
       by proof of discrimination plus proof employer's reason was pretext); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d
       444, 452 (Tex.1996) (same).
85     See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000) (noting good-faith test considers all circumstances
       on which official acted).
86     See, e.g., PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 (Tex.2004) (holding no evidence
       supported jury verdict applying discovery rule based on contrary evidence that claimant's predecessor knew 3,000
       windows had failed).
87     See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 194–95 (Tex.1998) (finding no evidence insurer denied
       claim in bad faith due to conflicting medical evidence).
88     See, e.g., State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex.1997) (holding some evidence showed expert report
       was pretext and thus denial of claim had no reasonable basis).
89     Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28
       (Tex.1993); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); Edrington v. Kiger, 4 Tex. 89, 93 (1849).
90     McGalliard, 722 S.W.2d at 697; Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex.1986); Ford v. Panhandle & Santa Fe Ry.
       Co., 151 Tex. 538, 252 S.W.2d 561, 563 (1952) (holding it was up to jurors “to resolve conflicts and inconsistencies in the
       testimony of any one witness as well as in the testimony of different witnesses”); Houston, E. & W.T. Ry. Co. v. Runnels,
       92 Tex. 305, 47 S.W. 971, 972 (1898).
91     Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).
92     Runnels, 47 S.W. at 972.
93     Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1942) (noting the Court “read the
       entire statement of facts”).
94     Harbin v. Seale, 461 S.W.2d 591, 594 (Tex.1970); compare Harbin v. Seale, 454 S.W.2d 271, 272 (Tex.Civ.App.-Dallas
       1970) (reporting defendant's testimony that he was traveling only 40 miles per hour), rev'd, 461 S.W.2d 591 (Tex.1970).
95     MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 653–54 (Tex.1999) (holding evidence allowed jurors to
       disbelieve defendant's experts' testimony even though plaintiff's expert's testimony was shown to be in error); Runnels,
       47 S.W. at 972; Cheatham v. Riddle, 12 Tex. 112, 118 (1854).
96     PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 100 (Tex.2004).
97     Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169–70 (Tex.1965).
98     Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex.1998); McGalliard v. Kuhlmann, 722 S.W.2d 694,
       697 (Tex.1986).
99     Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex.2002).
100    See TEX.R. CIV. P. 166a(c); Wal–Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 817 (Tex.2002) (finding no evidence that
       store knew of puddle based in part on uncontradicted testimony by only employee in the area); In re Doe 4, 19 S.W.3d 322,
       325 (Tex.2000); WFAA–TV, Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex.1998) (holding reporter's detailed explanation
       of foundation of report established lack of malice as matter of law).
101    See, e.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex.1993); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597,
       601 (Tex.1993); Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 365 (1957); Howard Oil Co. v. Davis,
       76 Tex. 630, 13 S.W. 665, 667 (1890) (holding reviewing court must uphold jury verdict despite strong evidence to the
       contrary if evidence is conflicting).
102    See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex.1999); Caller–Times Publ'g Co. v. Triad
       Communications, Inc., 826 S.W.2d 576, 580 (Tex.1992); Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex.1966).
103    Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48–49 (Tex.1998).
104    Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex.1998).
105    White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262–63 (Tex.1983).
106    Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 502 (1952).
107    St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542–43 (Tex.2002) (plurality op.).
108    T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992).
109    Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341–42 (Tex.1998).
110    De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 98–99 (1955).



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111    Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); id. at 162–63 (Hecht, J., concurring and dissenting).
112    See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum
       Corp., 136 S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Mobil Oil Corp.
       v. Ellender, 968 S.W.2d 917, 922 (Tex.1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997);
       Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25
       (Tex.1994); Orozco v. Sander, 824 S.W.2d 555, 556 (Tex.1992); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63
       (Tex.1983); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex.1983) (per curiam).
113    See William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” & “Insufficient Evidence,” 69 TEX. L.R. 515, 517–
       20 (1991).
114    Gragg, 151 S.W.3d at 552; St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Southwestern Bell
       Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng'rs
       & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); Havner, 953 S.W.2d at 711; Universe Life Ins. Co. v. Giles, 950
       S.W.2d 48, 75 (Tex.1997) (Hecht, J., concurring); Preferred Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67,
       68 (Tex.1989) (per curiam); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981); Harbin v. Seale, 461 S.W.2d
       591, 592 (Tex.1970); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 898 (Tex.1937).
115    See St. Joseph Hosp., 94 S.W.3d at 519–20 (Tex.2002) (plurality op.); Giles, 950 S.W.2d at 51 n. 1 (citing Wininger v.
       Ft. Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912) and Tex. & N.O. Ry. Co. v. Rooks, 293 S.W. 554,
       556–57 (Tex.Comm'n.App.1927)).
116    Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex.2004) (citing Choate v. San Antonio & A.P. Ry., 91 Tex.
       406, 44 S.W. 69, 69 (1898); Muhle v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W. 607, 608 (1894)).
117    Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Qantel Bus. Sys., Inc. v. Custom
       Controls Co., 761 S.W.2d 302, 303 (Tex.1988); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex.1965); Triangle Motors v.
       Richmond, 152 Tex. 354, 258 S.W.2d 60, 61 (1953); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d
       561, 562 (1952); Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935, 938 (1940).
118    Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996);
       Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex.1984); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262
       (Tex.1983); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 753 (Tex.1970); Dunagan v. Bushey, 152 Tex. 630,
       263 S.W.2d 148, 153 (1953); Fitz–Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex.
       343, 233 S.W.2d 121, 122 (1950); White v. White, 141 Tex. 328, 172 S.W.2d 295, 296 (1943); McAfee v. Travis Gas
       Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941); Wellington Oil Co. v. Maffi, 136 Tex. 201, 150 S.W.2d 60, 61 (1941);
       Chicago, R.I. & G. Ry. Co. v. Carter, 261 S.W. 135, 135 (Tex.Com.App.1924, judgm't adopted); Charles v. El Paso Elec.
       Ry. Co., 254 S.W. 1094, 1094–95 (Tex.Com.App.1923, holding approved, judgm't adopted).
119    Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994) (per curiam); Vance v. My Apartment Steak House of
       San Antonio, Inc., 677 S.W.2d 480, 483 (Tex.1984); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex.1983);
       Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978); Henderson
       v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex.1976); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex.1964).
120    Act of April 25, 1931, 42d Leg., R.S., ch. 77, § 1, 1931 Tex. Gen. Laws 119; Myers v. Crenshaw, 134 Tex. 500, 137
       S.W.2d 7, 13 (Tex.1940); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971 (Tex.1936). Cf. Deal v. Craven, 277 S.W.
       1046, 1047 (Tex.Com.App.1925, judgm't adopted) (“It has long been settled in this state that the judgment must follow
       the verdict, and that the courts are without power to enter a judgment notwithstanding a verdict upon a material issue.”).
121    Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex.1998) (“[W]e consider the evidence in the light most
       favorable to the verdict and reasonable inferences that tend to support it.”); Trenholm v. Ratcliff, 646 S.W.2d 927, 931
       (Tex.1983) (“In acting on the motion [for judgment notwithstanding the verdict], all testimony must be viewed in a light
       most favorable to the party against whom the motion is sought, and every reasonable intendment deducible from the
       evidence is to be indulged in that party's favor.”) (emphasis added); Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 728
       (Tex.1982) (same); Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974) (same); Leyva v. Pacheco, 163 Tex.
       638, 358 S.W.2d 547, 550 (1962) (same); Houston Fire & Cas. Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603–04
       (1953) (affirming trial court's implied disregard of one jury answer based on “consideration of the transcript as a whole”);
       Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952) (“[W]e must consider all the testimony in the record from
       the standpoint most favorable to the plaintiff.”) (emphasis added); Neyland v. Brown, 141 Tex. 253, 170 S.W.2d 207,
       211 (Tex.1943) (considering judgment non obstante veredicto “in the light of the record as a whole”); Le Master v. Fort
       Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 225 (1942) (“[W]e must view LeMaster's testimony, as well as all other
       testimony in the record, from a standpoint most favorable to him.”) (emphasis added); McAfee v. Travis Gas Corp., 137



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             21
City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

       Tex. 314, 153 S.W.2d 442, 445 (1941) (“[W]e must regard the evidence contained in this record in its most favorable light
       for McAfee ... because of the instructed verdict and judgment non obstante veredicto.”); see also Ballantyne v. Champion
       Builders, Inc., 144 S.W.3d 417, 424–29 (Tex.2004) (upholding judgment non obstante veredicto based on conclusive
       evidence contrary to verdict).
122    See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709
       (Tex.2003) (per curiam); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990); Best v. Ryan Auto Group, Inc.,
       786 S.W.2d 670, 671 (Tex.1990) (per curiam); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986);
       Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman
       v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 191 (Tex.1980); Dodd v. Tex. Farm Prods. Co., 576 S.W.2d 812, 814–15
       (Tex.1979); Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex.1978); Miller v. Bock Laundry Mach.
       Co., 568 S.W.2d 648, 650 (Tex.1977); Sobel v. Jenkins, 477 S.W.2d 863, 865 (Tex.1972); C. & R. Transp., Inc. v.
       Campbell, 406 S.W.2d 191, 193 (Tex.1966).
123    See Tiller, 121 S.W.3d at 713 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)); Miller, 102 S.W.3d at 709
       (same); Best, 786 S.W.2d at 671 (citing King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985)); Tomlinson, 677 S.W.2d at 492
       (citing Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981)); Campbell, 573 S.W.2d at 497 (citing Martinez
       v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974)); Campbell, 406 S.W.2d at 193 (citing Cartwright v. Canode, 106
       Tex. 502, 171 S.W. 696, 697–98 (1914)).
124    IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); Provident Life & Accident Ins.
       Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex.2003); Wal–Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002);
       Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 736 (Tex.1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868
       (Tex.1984).
125    See TEX.R. CIV. P. 166a(i).
126    530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
127    FED.R.CIV.P. 50(a)(1).
128    336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949).
129    Id. at 57, 69 S.Ct. 413.
130    Reeves, 530 U.S. at 149–50, 120 S.Ct. 2097 (citations omitted).
131    Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (emphasis added)
       (citation omitted); accord Long v. Long, 144 S.W.3d 64, 67 (Tex.App.-El Paso 2004, no pet.); Gore v. Scotland Golf,
       Inc., 136 S.W.3d 26, 29 (Tex.App.-San Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438
       (Tex.App.-Dallas 2002, pet. denied); N. Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 113 n. 3 (Tex.App.-Beaumont
       2001, pet. denied); Molina v. Moore, 33 S.W.3d 323, 329 (Tex.App.-Amarillo 2000, no pet.); Wal–Mart Stores, Inc. v. Itz,
       21 S.W.3d 456, 470 n. 3 (Tex.App.-Austin 2000, pet. denied); see also In re King's Estate, 150 Tex. 662, 244 S.W.2d
       660, 661 (1951) (per curiam) (holding court of appeals erred in failing to distinguish between legal and factual sufficiency
       review by not weighing all the evidence when conducting the latter).
132    Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.1981) (noting that review of gross negligence finding by considering
       all the evidence appeared to but did not conflict with traditional no-evidence test).
133    Dorsaneo, supra note 10, at 1503; see also Hardberger, supra note 10, at 17 (arguing exclusive standard is “designed
       to afford high deference to jury verdicts”).
134    State v. Biggar, 873 S.W.2d 11, 13 (Tex.1994).
135    See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex.2000) (noting plaintiff argued defendant's frequent
       inspections of stairs showed knowledge of inherent danger, while court held it showed the opposite as inspections found
       nothing); State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 45 (Tex.1998) (affirming bad-faith verdict after noting
       insurer's reasons for denial were contradictory).
136    See, e.g., Wal–Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex.1993) (noting evidence of single previous minor
       stumble supported negligence finding but not gross negligence).
137    See Judith Resnik, Managerial Judges, 96 HARV. L.R.. 374, 382–83 (1982) (noting that images of justice appeared
       blindfolded only within the last four hundred years).
138    Justice Calvert's use of the masculine in 1960 may perhaps be forgiven, for although Hattie Hennenberg, Hortense Ward,
       and Ruth Brazzil served temporarily on this Court in 1925, and Sarah T. Hughes was appointed as a state district judge
       ten years later, it was not until 1954 that the Texas Constitution was amended to allow women to serve as jurors, and
       not until 1973 that Mary Lou Robinson became the first women to serve as a state appellate judge. See James T. “Jim”




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City of Keller v. Wilson, 168 S.W.3d 802 (2005)
48 Tex. Sup. Ct. J. 848

       Worthen, The Organizational & Structural Development of Intermediate Appellate Courts in Texas, 46 S. TEX. L.REV.
       33, 75 (2004); Robert L. Dabney, Jr. We Were There, HOUSTON B.J. Nov.-Dec.1999, at 42, 44.
139    Calvert, supra note 12, at 364.
140    Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring).
141    86 S.W.3d 693, 709.
142    Id. at 703, 705.
143    Id. at 705.
144    Id. at 704–05.
145    Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 194–95 (Tex.1998); see also State Farm Lloyds v. Nicolau,
       951 S.W.2d 444, 448 (Tex.1997) (holding reliance on expert report did not foreclose bad-faith claim because claimant
       “presented evidence from which a fact-finder could logically infer that Haag's reports were not objectively prepared, that
       State Farm was aware of Haag's lack of objectivity, and that State Farm's reliance on the reports was merely pretextual.”).
146    Cf. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (holding complaint letters may require
       manufacturer to investigate, but are not evidence complaints are true).
147    Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004) (emphasis added).


End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            23
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)




                      419 S.W.3d 597                                Affirmed.
                 Court of Appeals of Texas,
                       San Antonio.
                                                                    Attorneys and Law Firms
          CITY OF SAN ANTONIO, Appellant
                        v.                                          *599 Norbert J. Hart, Michael D. Bernard, City Attorney's
         GREATER SAN ANTONIO BUILDERS                               Office, R. Gaines Griffin, Law Offices of Davidson, Troilo,
          ASSOCIATION and Indian Springs                            Ream & Garza, Dan Pozza, Law Offices of Dan Pozza, San
       Greater San Antonio Builders Association                     Antonio, TX, for Appellant.
          and Indian Springs Ltd., Appellees.                       S. Mark Murray, Law Office of S. Mark Murray, San
                                                                    Antonio, TX, for Appellee.
       No. 04–13–00013–CV.            |   Nov. 20, 2013.
                                                                    Sitting: KAREN ANGELINI, MARIALYN BARNARD, and
Synopsis
                                                                    REBECA C. MARTINEZ, Justices.
Background: Builders' association and owner of land within
city limits brought declaratory judgment action against city
seeking declaration that city's fair notice ordinance, which
required all development project permit seekers to complete                                  OPINION
city's fair notice form, conflicted with and was preempted
                                                                    Opinion by: KAREN ANGELINI, Justice.
by provisions of Local Government Code. The 37th Judicial
District Court, Bexar County, denied city's plea to the             The City of San Antonio appeals from a declaratory judgment
jurisdiction, and city appealed. The Court of Appeals, 2013         invalidating its fair notice ordinance. We affirm.
WL 2247468, affirmed. The 37th Judicial District Court,
David A. Berchelmann, Jr., J., granted summary judgment in
favor of builders' association and landowner. City appealed.
                                                                                         BACKGROUND

                                                                    Chapter 245 of the Texas Local Government Code
Holdings: The Court of Appeals, Karen Angelini, J., held that       In Texas, title 7 of the local government code governs the
                                                                    regulation of land use, structures, businesses, and related
[1] city's fair notice ordinance, which required all                activities. Chapter 245, which is contained in title 7 of the
development project permit seekers to complete city's fair          local government code, governs the issuance of local permits
notice form in addition to an original application for the          by a regulatory agency. TEX. LOC. GOV'T CODE ANN..
project under vested rights chapter of Local Government             §§ 245.001–.007 (West 2005). In 2005, the Texas Legislature
Code, conflicted with and was preempted by provisions of            amended chapter 245 to include a provision stating that
Local Government Code;                                              certain development rights accrue “on the filing of an original
                                                                    application or plan for development or plat application that
[2] trial court was not required to apply severance clause in       gives the regulatory agency fair notice of the project and
fair notice ordinance in order to strike any invalid parts of       the nature of the permit sought.” See id. § 245.002(a–1).
ordinance and leave remainder of ordinance in effect;               Thus, under chapter 245, a development project is governed
                                                                    by the regulations in effect at the time of the application
[3] terms of fair notice ordinance altered manner in which          for the project's first permit, rather than by any intervening
vested rights accrued, and were not merely “technical               regulations passed by the regulatory agency. See id. Chapter
requirements” relating to the form and content of permit            245 expressly provides that it may be enforced through
applications; and                                                   declaratory relief. Id. § 245.006(a).

[4] trial court did not abuse its discretion in awarding attorney
                                                                    Fair Notice Ordinance
fees to builders' association and landowner.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)


In February 2006, the City of San Antonio passed the fair           and whose rights had been previously acknowledged by the
notice ordinance. Section 35–410 of the ordinance requires          City by way of a vested rights permit or similar document,
permit applicants to complete a form, the fair notice form,         and (2) those who had vested rights in their property before
with all permit applications. San Antonio, Tex., Unified            the enactment of the ordinance but whose vested rights had
Development Code, § 35–410 (2006). The express purpose              not been previously acknowledged by the City. The second
of section 35–410 is “to provide standard procedures for            summary judgment motion addressed the ordinance as it
an applicant to accrue rights under Chapter 245 of the              affected a third category of plaintiffs: those who owned a
Texas *600 Local Government Code.” Id. The provisions               project, but had not yet obtained vested rights at the time
of section 35–410 apply to “any application for a permit by         the fair notice ordinance was enacted. Cumulatively, the
which an applicant desires to accrue rights under Chapter           summary judgment motions asserted that, in passing the
245 of the Texas Local Government Code.” Id. § 35–410(a).           fair notice ordinance, the City substantively impaired or
“To accrue rights under Chapter 245 of the Texas Local              encumbered vested rights that had already accrued under
Government Code, an applicant shall submit a complete               chapter 245, and substantively impaired or encumbered
application for a required permit ... within 45 days of the         vested rights that would accrue under chapter 245 in the
submission of the Fair Notice Form.” Id. § 35–410(e).               future. The trial court granted both summary judgment
                                                                    motions, and rendered a final judgment in favor of GSABA
                                                                    and Indian Springs. The City appealed.
Declaratory Judgment Action
In July 2006, the Greater San Antonio Builders Association
(GSABA) and Indian Springs, Ltd., filed the underlying
declaratory judgment action, alleging the fair notice                               STANDARD OF REVIEW
ordinance conflicted with chapter 245. GSABA is a non-
                                                                    We review a trial court's summary judgment de novo. Joe
profit organization whose members include individuals and
                                                                    v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–
entities who are concerned with issues affecting the real estate
                                                                    57 (Tex.2004); City of San Antonio v. En Seguido, Ltd.,
industry in the greater San Antonio area. Many members
                                                                    227 S.W.3d 237, 240 (Tex.App.-San Antonio 2007, no
also own real property in the City. Indian Springs is a Texas
                                                                    pet.). When reviewing a summary judgment we take as true
limited partnership that owns real property in the City. The
                                                                    all evidence favorable to the nonmovant, and we indulge
City is a regulatory agency as that term is defined in chapter
                                                                    every reasonable inference and resolve any doubts in the
245. See id. § 245.001(4) (providing that “regulatory agency”
                                                                    nonmovant's favor. Joe, 145 S.W.3d at 156–57; En Seguido,
“means the governing body of, or a bureau, department,
                                                                    227 S.W.3d at 240. The party moving for a “traditional”
division, board, commission, or other agency of, a political
                                                                    summary *601 judgment bears the burden to show that no
subdivision acting in its capacity of processing, approving, or
                                                                    genuine issue of material fact exists and that it is entitled to
issuing a permit”).
                                                                    judgment as a matter of law. Joe, 145 S.W.3d at 156–57; En
                                                                    Seguido, 227 S.W.3d at 240; TEX.R. CIV. P. 166a(c).
The City filed a plea to the jurisdiction challenging the
standing of GSABA and Indian Springs. The trial court
denied the City's plea to the jurisdiction, and the City appealed
this interlocutory order. We affirmed the order denying the                      DECLARATORY JUDGMENT
plea to the jurisdiction. City of San Antonio v. Greater San
                                                                    On appeal, the City argues the fair notice ordinance, like all
Antonio Builders Ass'n, No. 04–12–00745–CV, 2013 WL
                                                                    ordinances, was entitled to a presumption of validity, and
2247468, at *4 (Tex.App.-San Antonio 2013, no pet.).
                                                                    GSABA and Indian Springs failed to satisfy their burden
                                                                    to overcome this presumption in the summary judgment
Summary Judgment Motions                                            proceedings below. The City further argues there is no
GSABA and Indian Springs presented the merits of their              conflict between chapter 245 and the fair notice ordinance;
declaratory judgment action in two traditional summary              to the contrary, the fair notice ordinance is consistent and in
judgment motions. The first summary judgment motion                 harmony with chapter 245. In response to these arguments,
addressed the ordinance as it affected two categories of            GSABA and Indian Springs argue they met their summary
plaintiffs: (1) those who had vested rights in their property       judgment burden by conclusively establishing that the fair
and had such rights before the enactment of the ordinance           notice ordinance conflicts with chapter 245. 1


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)


                                                                          In enacting chapter 245, the legislature found the statute's
 [1] [2] [3] [4] When reviewing the validity of a                     cityrequirements were necessary to prevent “administrative and
ordinance, we begin with the presumption that the ordinance               legislative practices that often result[ed] in unnecessary
is valid. City of Brookside Village v. Comeau, 633 S.W.2d                 governmental regulatory uncertainty that inhibit[ed] the
790, 792 (Tex.1982); RCI Entm't, Inc. v. City of San Antonio,             economic development of the state[,] increased the costs of
373 S.W.3d 589, 595 (Tex.App.-San Antonio 2012, no pet.).                 housing and other forms of land development[,] and often
The party challenging the ordinance bears the burden to                   resulted in the repeal of previously approved permits causing
establish its invalidity. RCI Entm't, 373 S.W.3d at 595. An               decreased property and related values, bankruptcies, and
ordinance that attempts to regulate a subject matter preempted            failed projects.” See Act of May 11, 1999, 76th Leg., R.S., ch.
by a state statute is unenforceable to the extent it conflicts with       73, § 1(b), 1999 Tex. Gen. Laws 432; see also Harper Park
a state statute. Dallas Merchant's & Concessionaire's Ass'n               Two, 359 S.W.3d at 250.
v. City of Dallas, 852 S.W.2d 489, 490–91 (Tex.1993); RCI
Entm't, 373 S.W.3d at 595. We will not hold an ordinance           [8] In the case before us, the City asserts the fair notice
and a state statute repugnant to each other if we can reach a     ordinance is necessary for it to carry out its responsibilities
reasonable construction leaving both in effect. In re Sanchez,    under chapter 245. According to the City, the fair notice
81 S.W.3d 794, 796 (Tex.2002); RCI Entm't, 373 S.W.3d             ordinance ensures it will have enough information about
at 595–96. However, if it is not possible to reconcile the        a project to determine whether the project has changed
ordinance and the state statute, the state statute trumps the     and, therefore, is subject to current development regulations.
ordinance. See Dallas Merchant's, 852 S.W.2d at 490–92.           GSABA and Indian Springs counter that the fair notice
                                                                  ordinance impairs and encumbers important substantive
 [5]    [6]     [7] Historically, the right to develop property rights. They take the position that the fair notice ordinance
in Texas was subject to regulatory changes brought by the         allows the City to prevent owners from obtaining or utilizing
local regulatory agency. Harper Park Two, LP v. City of           vested rights that have already been authorized by the
Austin, 359 S.W.3d 247, 249 (Tex.App.-Austin 2011, pet.           legislature.
denied). However, the Texas legislature modified this rule
by enacting chapter 245. See id.; TEX. LOC. GOV'T CODE            The summary judgment evidence submitted by GSABA and
ANN.. § 245.002(a–1). The effect of chapter 245 is to freeze      Indian Springs included the deposition testimony of Roderick
most of the regulatory agency's land-use regulations as they      J. Sanchez, the City's Director of Development Services.
existed at the time the first permit application is filed through Sanchez testified that his department interprets and enforces
completion of the project. City of San Antonio v. Rogers          the fair notice ordinance. Sanchez acknowledged that what
Shavano Ranch, Ltd., 383 S.W.3d 234, 245–46 (Tex.App.-            constituted vested rights was defined by state statute, and
San Antonio, 2012, pet. denied); Harper Park Two, 359             the definition of vested rights did not vary based on the
S.W.3d at 250. The rights to which a permit applicant is          location of the project. Nevertheless, Sanchez stated there
entitled under chapter 245 are commonly referred to as            were no circumstances under which the City would recognize
“vested rights.” Vested rights attach to a project, not to        vested rights in the absence of a completed fair notice
a particular property owner. Rogers Shavano Ranch, 383            form. If an owner seeking recognition of vested rights did
S.W.3d at 246; Harper Park Two, 359 S.W.3d at 250.                not submit the fair notice form, his application would be
Thus, vested rights follow any conveyances or transfer of         deemed incomplete and the City would not begin its review
rights related to the project. Rogers Shavano Ranch, 383          to determine whether or not the owner had vested rights.
S.W.3d at 246; *602 Harper Park Two, 359 S.W.3d at                Sanchez noted that the information an owner was required
250. Chapter 245 defines a “project” as “an endeavor over         to provide under the fair notice ordinance was much more
which a regulatory agency exerts its jurisdiction and for which   detailed than the information that was required before the
one or more permits are required to initiate, continue, or        passage of the fair notice ordinance. Before the passage of the
complete the endeavor.” TEX. LOC. GOV'T CODE ANN..                fair notice ordinance, an owner could identify an endeavor
§ 245.001(3). “Because the term project is defined as an          without having all the information required on the City's fair
endeavor, rights vest in a particular project and are no longer   notice form, and the City would issue vested rights permits
vested if the project changes.” En Seguido, 227 S.W.3d at         without all of this information. Sanchez also acknowledged
242–43 (emphasis in original).                                    that before the passage of the fair notice ordinance, but after
                                                                  chapter 245 was enacted, the City required only “evidence of



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)


a project” to recognize vested rights, and this evidence could     failure to provide information beyond that which was required
have been as simple as a master development plan.                  to vest rights in the first place. Thus, the fair notice ordinance
                                                                   directly conflicts with chapter 245.
The summary judgment evidence submitted by GSABA and
Indian Springs also included the fair notice ordinance and         For these reasons, we hold that GSABA and Indian Springs
the fair notice form mandated by the ordinance. The fair           overcame the presumption of validity and conclusively
notice ordinance provides that the City will not recognize         established that the fair notice ordinance conflicts with
vested rights unless and until the owner completes and             chapter 245.
submits the fair notice form. *603 See San Antonio, Tex.,
Unified Development Code § 35–712(a)(1)–(b)(2) (2006).             In arguing that the summary judgments were improperly
The fair notice form requires an owner to identify any             granted, the City criticizes the trial court for not trying to
existing vested rights permit numbers if such permits have         harmonize *604 the ordinance and the statute. However,
already been approved for the proposed project. The form also      the City does not explain how the ordinance and the statute
requires a site plan for most types of development projects.       could be harmonized. Having examined chapter 245, the
According to the form, this site plan “shall include lot layout,   ordinance, and the summary judgment evidence, we conclude
general building footprint with approximate square footage         the ordinance and chapter 245 cannot be harmonized.
of building(s), and land use.” 2 The fair notice form provides
that all fields on the form must be completed for the form to      The City also faults the trial court for not severing the
be valid.                                                          objectionable provisions from the fair notice ordinance. The
                                                                   City, however, did not present the severance clause argument
Under chapter 245, the filing of the first permit, or plan for     in its response to the first summary judgment motion. “Issues
development, or plat application, in a development project         not expressly presented to the trial court by written motion,
determines the regulations that will be used to govern the         answer or other response shall not be considered on appeal as
remainder of the project. Specifically, section 245.002(a–1)       grounds for reversal.” TEX.R. CIV. P. 166a(c). Thus, because
provides: “Rights to which a permit applicant is entitled under    this argument was not presented to the trial court, we may
this chapter accrue on the filing of an original application       not consider it on appeal as a ground for reversal of the first
or plan for development or plat application that gives the         summary judgment motion.
regulatory agency fair notice of the project and the nature
of the permit sought.” TEX. LOC. GOV'T CODE ANN..                   [9] The City did present the severance clause argument
§ 245.002(a–1). When read in context, it is clear that the         in its response to the second summary judgment motion.
term “original application” contemplates an original permit        There, the City argued that “[i]f the court believes that some
application. Chapter 245 further provides: “If a series of         of the requirements of the [f]air [n]otice [o]rdinance are
permits is required for a project, the orders, regulations,        so burdensome that vested rights might be prevented from
ordinances, rules, expiration dates, or other properly adopted     recognition, the [c]ourt should use the severability clause
requirements in effect at the time the original application for    contained in Section 6 of [the] [o]rdinance [ ] to strike out only
the first permit in that series is filed shall be the sole basis   the invalid parts and leave the remainder of the [o]rdinance in
for consideration of all subsequent permits required for the       effect.” The severance clause provides:
completion of the project.” Id. § 245.002(b). Thus, chapter
                                                                                Should any Article, Section, Part,
245 expressly defines the documents that cause the accrual of
                                                                                Paragraph, Sentence, Phrase, Clause
vested rights and the time when this accrual occurs. 3                          or Word of this ordinance, for any
                                                                                reason be held illegal, inoperative,
Nevertheless, as shown above, the fair notice ordinance                         or invalid, or if any exception
creates an additional procedure for obtaining recognition of                    to or limitation upon any general
vested rights under chapter 245. This additional procedure                      provision herein contained be held
may wholly preclude the recognition of vested rights accruing                   to be unconstitutional or invalid
under chapter 245. In other words, the fair notice ordinance                    or ineffective, the remainder shall,
effectively redefines the manner in which vested rights accrue                  nevertheless, stand effective and valid
under chapter 245. Under the fair notice ordinance, the City                    as if it had been enacted and
can deny the exercise of vested rights based upon the owner's                   ordained without the portion held


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)


                                                                    stipulated that $115,000.00 was a reasonable and necessary
             to be unconstitutional or invalid or
                                                                    attorney's fee for the work performed at the trial level. On
             ineffective.
                                                                    appeal, the City argues the attorney's fees award was neither
San Antonio, Tex., Ordinance 2006–02–16–0241 (February              equitable nor just. The City argues the taxpayers should not
16, 2006).                                                          be burdened with paying attorney's fees because the City
                                                                    was merely attempting to regulate development in accordance
Here, GSABA and Indian Springs challenged the validity of           with the law.
the entire ordinance; they did not challenge the validity of a
particular article, section, part, paragraph, sentence, phrase,     We review the award of attorney's fees for an abuse
clause, or word of the ordinance. Additionally, the trial court     of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21
concluded the entire ordinance was invalid, not merely part         (Tex.1998); Peacock v. Schroeder, 846 S.W.2d 905, 912
of it. Under these circumstances, we conclude the trial court       (Tex.App.-San Antonio 1993, no writ). Attorney's fees
did not err in failing to apply the severance clause to salvage     awarded under the Declaratory Judgment Act must be
parts of the ordinance.                                             “equitable and just.” TEX. CIV. PRAC. & REM.CODE
                                                                    ANN. § 37.009 (West 2008). As we concluded earlier in this
[10]     Finally, the City claims that section 245.002(f)           opinion, the fair notice ordinance conflicts with chapter 245.
expressly authorizes its fair notice ordinance. 4 We disagree.      GSABA and Indian Springs were successful in demonstrating
Section 245.002(f) does not go so far as to authorize a             this conflict between the ordinance and the state statute, and in
regulatory agency to wholly redefine the manner in which            obtaining a declaratory judgment in their favor. See Peacock,
vested rights accrue under chapter 245. It merely provides          846 S.W.2d at 912 (holding the trial court did not clearly
that a regulatory agency is not prohibited from requiring           abuse its discretion in awarding all of the stipulated attorney's
compliance with technical application requirements. See             fees to a party who obtained a declaratory judgment in his
TEX. LOC. GOV'T CODE ANN.. § 245.002(f).                            favor). We hold the trial court did not abuse its discretion in
                                                                    awarding GSABA and Indian Springs attorney's fees.
We hold the trial court did not err in granting summary
judgment in favor of GSABA and Indian Springs.
                                                                                           CONCLUSION

                                                                    The trial court's judgment is affirmed.
                   ATTORNEY'S FEES

 [11] Next, the City challenges the trial court's attorney's fees
                                                                    All Citations
award. The trial court awarded GSABA and Indian Springs
$115,000.00 in attorney's fees incurred at the trial level, and     419 S.W.3d 597
additional amounts in *605 the event of an appeal. The City


Footnotes
1      GSABA and Indian Springs also argue the summary judgments should be upheld because the fair notice ordinance is
       an unconstitutional retroactive law. Arguably, this issue is not properly presented because GSABA and Indian Springs
       did not specifically make this argument in the first summary judgment motion. And, as to the second summary judgment
       motion, GSABA and Indian Springs only raised this issue in their brief, which was not filed until after the City filed its
       response. Nevertheless, we need not reach this argument because we uphold the summary judgments on the ground
       that the ordinance conflicts with chapter 245.
2      The undisputed summary judgment evidence showed that this information would generally not be available at the early
       stages of a project when a first permit application would be submitted.
3      Chapter 245 defines “permit” as “a license, certificate, approval, registration, consent, permit, contract or other agreement
       for construction related to, or provision of, service from a water or wastewater utility owned, operated, or controlled by
       a regulatory agency, or other form of authorization required by law, rule, regulation, order, or ordinance that a person
       must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought.” TEX. LOC.
       GOV'T CODE ANN. . § 245.001(1) (emphasis added). However, the fair notice ordinance omits a utility service agreement



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597 (2013)


      as a document that may trigger the accrual of vested rights. According to the fair notice ordinance, there are only four
      acceptable documents that trigger the accrual of vested rights: a master development plan, a plat application, a plat, or
      a building permit. San Antonio, Tex., Unified Development Code § 35–712(b)(3)(A)–(D) (2006).
4     Section 245.002(f) provides:
          This chapter does not prohibit a regulatory agency from requiring compliance with technical requirements relating to
          the form and content of an application in effect at the time the application was filed even though the application is
          filed after the date an applicant accrues rights under Subsection (a–1).
        TEX. LOC. GOV'T CODE ANN.. § 245.002(f).


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)


                                                                    forth standards for the operation and construction of private
                     598 S.W.2d 681                                 sewage facilities 1 and required inspection and licensing of
          Court of Civil Appeals of Texas, Waco.                    all such facilities existing within the city's limits or within
                                                                    the city's extraterritorial jurisdiction. Inspections were to be
 The CITY OF WEST LAKE HILLS, Texas, Appellant,                     made by the city for a fee of $25 unless an owner hired his
                     v.                                             own engineer or registered sanitarian to inspect the facility,
  WESTWOOD LEGAL DEFENSE FUND, Appellee.                            in which case a fee of $15 would be levied to cover the cost
                                                                    of processing reports required to be submitted by a private
               No. 6157.      |   April 17, 1980.                   inspector. If the facility met the express standards of the
                                                                    ordinance, a license immediately issued; if not, the city was
City appealed from judgment entered in the 126th District
                                                                    required to specify the reasons for rejecting the application for
Court, Travis County, James F. Dear, Jr., J., permanently
                                                                    license and the city was authorized to issue interim licenses
enjoining city from enforcing by criminal action an ordinance
                                                                    while the facility was modified to comply with the standards.
requiring licensing of private sewage facilities located within
                                                                    Most licenses were to be issued for a 5-year period, but a
city's extraterritorial jurisdiction. The Court of Civil Appeals,
                                                                    license could be revoked at any time for non-compliance.
James, J., held that: (1) city could not enforce ordinance by
                                                                    Enforcement of the ordinance was by criminal action brought
criminal action; (2) city ordinance was not valid exercise
                                                                    in the city's municipal court. Offenses proscribed by the
of powers granted to city under statute allowing each
                                                                    ordinance included, inter alia: 1) using or permitting the use
city to pass ordinances regulating tapping of sewers and
                                                                    of an unlicensed private sewage facility on property owned
cesspools and regulating house draining and plumbing, or
                                                                    or possessed by the offender; and 2) failure of an owner to
under statute generally granting to cities power to license; and
                                                                    make application for a license for an existing private sewage
(3) municipal court had no jurisdiction to try violations of
                                                                    facility on property within 90 days after notice by the city.
ordinance which might occur in extraterritorial jurisdiction.
                                                                    Convictions were punishable by a fine of not more than $200
                                                                    for each separate offense.
Affirmed.
                                                                    The evidence establishes that the ordinance in question was
Attorneys and Law Firms                                             passed solely upon *683 the city's initiative and not as a joint
                                                                    effort between the city and any state or county authority.
 *682 John McAllen Scanlan, Scanlan & Buckle, Austin, for
appellant.                                                          The Appellee, Westwood Legal Defense Fund, is a coalition
                                                                    of homeowners, all of which reside in a subdivision known
David H. Walter, Bender, Walter & Wahlberg, Austin, for             as Westwood, which is located entirely outside the corporate
appellee.                                                           limits but within the extraterritorial jurisdiction of the City of
                                                                    West Lake Hills. The Appellee filed this suit to enjoin West
                                                                    Lake Hills from enforcing its Ordinance 108-B insofar as it
                          OPINION                                   applied to facilities located outside the city's corporate limits,
                                                                    pleading that the city lacks express or implied legislative
JAMES, Justice.                                                     authority to regulate by licensing any private sewage facilities
                                                                    located outside the city's corporate limits; that the ordinance
This is an appeal from a judgment permanently enjoining
                                                                    is hopelessly in conflict with state law since the Legislature
the Appellant, City of West Lake Hills, from enforcing by
                                                                    has granted exclusive authority for the regulation of private
criminal action an ordinance which requires the licensing
                                                                    sewage facilities to the Texas Water Commission and the
of private sewage facilities located within the city's
                                                                    commissioners court of any county, citing Secs. 26.031
extraterritorial jurisdiction. We affirm the judgment.
                                                                    and 26.032 of the Texas Water Code; that the ordinance
                                                                    imposes a fine not to exceed $200 for any violation thereof,
The Appellant, City of West Lake Hills, is a general law city
                                                                    that such a fine is penal in nature and is prohibited by
having a population of less than 5000 people. On or about
                                                                    state law, citing Art. 970a, Sec. 4; that the penalty further
October 12, 1977, the City Council passed an ordinance,
                                                                    conflicts with state law since Sec. 26.214 of the Texas
108-B, attempting to control pollution flowing from private
                                                                    Water Code provides the exclusive remedy as well as proper
sewage facilities. Ordinance 108-B, among other things, sets


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)


venue for violations of private sewage facility orders; that        will be resolved against the municipality. Foster v. City of
the scheme of the ordinance is arbitrary, capricious and            Waco, cited supra. The City argues that the power exercised
unreasonable; that the ordinance represents a violation of the      in Ordinance 108-B is in fact expressly or at least impliedly
constitutional prohibition against the enactment of retroactive     conferred by Sec. 26.177 of the Texas Water Code, which in
or ex post facto laws; and that the ordinance constitutes an        its pertinent parts provides:
unconstitutional taking of property without due process.
                                                                     *684 “(a) Every city in this state having a population of
The case was submitted to the trial court on stipulated facts       5,000 or more inhabitants shall, and any city of this state may,
and written briefs and the court rendered judgment granting         establish a water pollution control and abatement program for
a permanent injunction prohibiting the City of West Lake            the city.
Hills from enforcing by criminal action that provision of
Ordinance 108-B which requires the licensing of private             “(b) The water pollution control and abatement program of
sewage facilities located within the city's extraterritorial        a city shall encompass the entire city and may include areas
jurisdiction. The trial court's judgment recited that “the CITY     within its extraterritorial jurisdiction which in the judgment
OF WEST LAKE HILLS, TEXAS, Ordinance 108-B is a                     of the city should be included to enable the city to achieve
valid exercise of legislatively granted powers to the CITY OF       the objectives of the city for the area within its territorial
WEST LAKE HILLS, TEXAS, and that such Ordinance is in               jurisdiction. The city shall include in the program the services
all respects valid and enforceable except as hereinafter set out:   and functions which, in the judgment of the city or as may be
                                                                    reasonably required by the commission, will provide effective
“a. That DEFENDANT CITY OF WEST LAKE HILLS,                         water pollution control and abatement for the city, including
TEXAS, Ordinance 108-B exceeds the authority granted                the following services and functions:
to the DEFENDANT CITY OF WEST LAKE HILLS
by the State of Texas only in its attempt to require the            “(1) the development and maintenance of an inventory
licensing of private sewage facilities in the DEFENDANT'S           of all significant waste discharges into or adjacent to the
extraterritorial jurisdiction.                                      water within the city and, where the city so elects, within
                                                                    the extraterritorial jurisdiction of the city, without regard
“b. That the Municipal Court of the CITY OF WEST                    to whether or not the discharges are authorized by the
LAKE HILLS, TEXAS, has no jurisdiction to try violations            department;
of Ordinance 108-B alleged to have occurred in the
DEFENDANT CITY'S extraterritorial jurisdiction.”                    “(2) the regular monitoring of all significant waste discharges
Further the judgment expressly recited that “Nothing                included in the inventory prepared pursuant to Subdivision
contained herein should be interpreted as expressing any            (1) of this subsection;
opinion over any of the provisions of Ordinance 108-B as they
apply within the city limits of the CITY OF WEST LAKE               “(3) the collecting of samples and the conducting of periodic
HILLS, TEXAS.”                                                      inspections and tests of the waste discharges being monitored
                                                                    to determine whether the discharges are being conducted in
The City appeals claiming simply that the court erred in            compliance with this chapter and any applicable permits,
finding its Ordinance 108-B invalid in the two respects set         orders or rules of the department, and whether they should be
forth above. We overrule the City's contentions.                    covered by a permit from the commission;

 [1]    [2] A city can exercise only those powers that are          “(4) in cooperation with the department, a procedure
expressly or impliedly conferred by law, and a power will be        for obtaining compliance by the waste discharges being
implied only when such power is reasonably incident to those        monitored, including where necessary the use of legal
expressly granted or is essential to the object and purposes        enforcement proceedings; and
of the corporation. Davis v. City of Taylor, 67 S.W.2d 1033,
123 Tex. 39 (1934); Anderson v. City of San Antonio, 67             “(5) the development and execution of reasonable and
S.W.2d 1036, 123 Tex. 163 (1934); Foster v. City of Waco,           realistic plans for controlling and abating pollution or
255 S.W. 1104, 113 Tex. 352 (1923). Furthermore, any fair,          potential pollution resulting from generalized discharges of
reasonable, or substantial doubt as to the existence of a power



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              2
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)


waste which are not traceable to a specific source, such as        “(d) If the commission finds after the hearing that the use of
storm sewer discharges and urban runoff from rainwater.”           private sewage facilities in an area is causing or may cause
The city contends that this statute constitutes a broad, general   pollution or is injuring or may injure the public health, the
grant of power to cities to formulate plans for the control of     commission may enter an order as it may consider appropriate
pollution and that such plans can reasonably include licensing     to abate or prevent pollution or injury to public health.
of private sewage facilities and enforcement by criminal
action. The city supports its argument by citing Attorney          “(f) The commission may provide in the order for a system
General's Opinion No. H-304 (1974), wherein the Attorney           of licensing of private sewage facilities in the area, including
General concludes that:                                            procedures for cancellation of a license for violation of this
                                                                   section, the license, or the orders or rules of the department.
             “A city has broad powers to establish                 The commission may also provide in the system of licensing
             water pollution control programs                      for periodic renewal of the licenses, but this may not be
             under (Sec. 26.177), Texas Water                      required more frequently than once a year.
             Code. These powers can include
             regulation of private sewage facilities              “(g) The commission may delegate the licensing function and
             in the city and in its extraterritorial              the administration of the licensing system to the executive
             jurisdiction.”                                       director or to any local government whose boundaries include
                                                                  the area or which has been designated by the commission
 [3]     [4]    [5]    [6] In construing a statute, it is our dutyunder Sections 26.081 through 26.086 of this code as the
to examine the entire act and construe it as a whole. One         agency to develop a regional waste disposal system . . .
provision of a statute will not be given a meaning out of
harmony or inconsistent with other provisions, even though        “(h) The board also may prescribe and require the payment of
it might be susceptible to such construction if standing alone.   reasonable license fees. . . .
Merchants Fast Motor Lines, Inc. v. Railroad Commission
of Texas, 573 S.W.2d 502 (Tex.1978); Barr v. Bernhard,            “(i) If the commission or the executive director has the
562 S.W.2d 844 (Tex.1978); Gerst v. Oak Cliff Savings &           responsibility for performing the licensing function, the
Loan Assn., 432 S.W.2d 702 (Tex.1968). For this reason we         license fees shall be paid to the department. . . .
cannot accept the City's argument, nor can we agree with
the Attorney General's Opinion to the extent that it may          “(j) If a local government has the responsibility for
support the City's position in this case. If Sec. 26.177 of the   performing the licensing function, the fees shall be paid to the
Texas Water Code were the only statutory provision relating       local government.” (emphasis ours)
to the control and abatement of pollution, there might be
some merit to the argument. However, Sec. 26.177 is only          Sec. 26.032 of the Texas Water Code further provides that:
one provision in a much more complex and comprehensive
legislative scheme. When Chapter 26 is viewed in its entirety,    “(a) Whenever it appears to the commissioners court of any
regardless of the broad, general language of Sec. 26.177, it      county that the use of private sewage facilities in an area
is clear that the section was not intended to authorize cities    within the county is causing or may cause pollution or is
on their own initiative to regulate private sewage facilities     injuring or may injure the public health, the county may
by licensing such facilities. For example, Sec. 26.031 of the     proceed in the same manner and in accordance with the same
Texas Water Code, relating to “private sewage facilities,”        procedures as the commission to hold a public hearing and
provides that:                                                    enter an order, resolution, or other rule as it may consider
                                                                  appropriate to abate or prevent pollution or injury to public
 *685 “(b) Whenever it appears that the use of private sewage     health.
facilities in an area is causing or may cause pollution or
is injuring or may injure the public health, the commission       “(b) The order, resolution, or other rule may provide the same
may hold a public hearing in or near the area to determine        restrictions and requirements as are authorized for an order of
whether an order should be entered controlling or prohibiting     the commission entered under this section.
the installation or use of private sewage facilities in the area.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)


“(c) Before the order, resolution, or other rule becomes            five specific functions and services that are or may be
effective, the county shall submit it to the commission and         assigned to the cities. None of these functions and services
obtain the commission's written approval.                           specifically requires passage of rules and regulations for
                                                                    controlling pollution. Instead, the functions and services
“(e) Where a system of licensing has been ordered by the            listed in Sec. 26.177 are in the nature of “information
commission or the commissioners court of a county, no               gathering” functions which would ultimately be very valuable
person may install or use private sewage facilities required to     to assist the state in designing and in enforcing its rules
be licensed without obtaining a license.”                           and regulations. Sec. 26.177(b)(3), for example, expressly
These two sections of the Water Code (Secs. 26.031 and              states that the city's inspection and collection services are
26.032) specifically grant the power to license private             designed to determine whether the discharges are meeting
sewage facilities to the Texas Water Commission and to the          applicable permits, rules, or orders of the state department
Commissioners Courts of Texas counties. On the other hand,          and whether they should be covered by a permit from the
Sec. 26.177, granting the power to “control and abate water         state commission. In our opinion, Sec. 26.177 requires (in
pollution,” does not specifically grant the power to license        the case of cities over 5000) or allows (in the case of cities
such facilities nor does the language of Sec. 26.177 in any         less than 5000) cities to monitor pollution levels both in their
way track or resemble the language of Secs. 26.031 or 26.032.       corporate limits and in their extraterritorial jurisdictions. The
Furthermore, Sec. 26.031 expressly states that the power to         information gathered in this monitoring could (or should) be
license may be delegated to a city by the commission. In order      used by cities in developing plans for growth and expansion,
to give any effect to this specific provision, we would have to     which may of course include consideration of problems in the
conclude that the power granted to the cities by Sec. 26.177        extraterritorial jurisdiction. The information would further
does not include the power that can be delegated by the Water       be vital to the initiation of action by the state under Sec.
Commission under Sec. 26.031.                                       26.031(b), or by the county under Sec. 26.032(a), if pollution
                                                                    problems were detected by the city in regard to private
 *686 [7] The city contends that Secs. 26.031 and 26.032            or public sewage facilities within or surrounding the city.
cannot be construed to limit the powers granted under Sec.          However, the legislative scheme simply does not contemplate
26.177 since neither 26.031 nor 26.032 expressly prohibits          independent regulatory action by a city.
regulation of private sewage facilities by cities. As a general
rule, however, in the construction of statutes a general clause      [8] [9] The city argues alternatively that Ordinance 108-
is limited or controlled by a special provision. It is said that    B is a valid exercise of powers granted to it under Art. 1076
this rule is based upon the principle that a specific clause or     and Art. 1015(39), R.C.S. Art. 1076 directs that “Every city
statute more clearly evidences the intention of the Legislature.    in this State, however organized, having underground sewers
City of Baytown v. Angel (Houston 14th CA 1971) 469                 or cesspools, shall pass ordinances regulating the tapping
S.W.2d 923, NRE.                                                    of said sewers and cesspools, regulating house draining and
                                                                    plumbing”; and Art. 1015(39) is a general grant of the power
In the instant case the specific assignment of the power to         to license. All powers granted to a city can only be exercised
license private sewage facilities (Secs. 26.031 and 26.032)         within the corporate limits of a city unless the power is
limits the more general grant of power to the cities. In our        expressly extended to apply to areas outside these limits. City
opinion it is clear that the Legislature intended to reserve to     of Sweetwater v. Hamner (Ft. Worth CA 1924) 259 S.W.
the State the ultimate power to regulate in the area of pollution   191, writ dismissed; Ex parte Ernest, 138 Tex.Cr.R. 441, 136
control. Even though the counties have express authority            S.W.2d 595 (1940). The Appellees in this case only challenge
to develop licensing requirements, such requirements must           the power of the city to regulate private sewage facilities
be approved by the state. Sec. 26.032(c). Even though the           located wholly within the city's extraterritorial jurisdiction
cities may assist in obtaining compliance with pollution            rather than within the city's corporate limits. Neither Art. 1076
standards, these efforts must be in cooperation with the Texas      nor Art. 1015(39) expressly authorizes regulations applying
Department of Water Resources. Sec. 26.177(b)(4). Although          outside the corporate limits and cannot therefore be relied on
the Legislature recognized the importance of cooperative            in this case. The question of the validity of Ordinance 108-B
efforts between state and local governmental bodies, the            as it applies to facilities located within the city limits of City
state is assigned responsibility for promulgating rules and         of West Lake Hills is not raised by this case and we do not
regulations to control pollution problems. Sec. 26.177 lists        decide that issue.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
City of West Lake Hills v. Westwood Legal Defense Fund, 598 S.W.2d 681 (1980)


                                                                writ. Having found that the city had no authority to apply
 *687 [10]          [11]    The Appellant City assigns as a its licensing regulations in the extraterritorial jurisdiction, we
separate point of error the conclusion of the trial court that  must also hold that the municipal court has no jurisdiction
the municipal court has no jurisdiction to try violations       to try violations of the ordinance which may occur in the
of Ordinance 108-B alleged to have occurred in the              extraterritorial jurisdiction.
extraterritorial jurisdiction of the city. As a general rule, a
municipal court only has jurisdiction to enforce violations     Judgment of the trial court is affirmed.
occurring within the corporate limits of the city. Art. 1195,
                                                                AFFIRMED.
R.C.S. A municipal court may, however, have jurisdiction
to try offenses occurring outside the corporate limits if the
offenses constitute violations of city ordinances which validly
                                                                All Citations
apply to the area in which the offense occurred. Treadgill v.
State, 160 Tex.Cr.R. 658, 275 S.W.2d 658 (1955); Parker v.      598 S.W.2d 681
City of Ft. Worth (Ft. Worth CA 1955) 281 S.W.2d 721, no


Footnotes
1      “Private sewage facility” was defined as “any septic system, or other facility, system, or method for the storage, treatment,
       or disposal of sewage other than an organized disposal system.” (An “organized disposal system” being “any public or
       private system for the collection, treatment, and disposal of sewage operated in accordance with the terms and conditions
       of a permit from the Water Quality Board.”)


End of Document                                                © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Coffee City v. Thompson, 535 S.W.2d 758 (1976)


                                                                  by the zoning ordinance of Coffee City. Trial was before the
                                                                  court without a jury.
                       535 S.W.2d 758
                Court of Civil Appeals of Texas,                  The trial court rendered judgment that the zoning ordinance
                             Tyler.                               was invalid and null and void, and ordered the Town of Coffee
                                                                  City, Mary Phillips, city secretary, and all other officials to
                COFFEE CITY et al., Appellants,
                                                                  grant appellee's building permit to construct a building for
                            v.
                                                                  the operation of a package liquor store. Appellants bring this
                 B. J. THOMPSON, Appellee.
                                                                  appeal from the portion of the judgment holding the zoning
                                                                  ordinance, being Ordinance No. 1, null and void, and of no
                No. 882. | March 25, 1976.
                                                                  further force and effect. We affirm.
            |   Rehearing Denied April 22, 1976.
                                                                  The trial court made and filed Findings of Fact and
Property owner brought action against town, mayor, town
                                                                  Conclusions of Law. The Town *760 of Coffee City
secretary and member of town council, seeking to have
                                                                  was incorporated under the laws of Texas on December
zoning ordinance declared null and void and seeking writ of
                                                                  18, 1969. At the first election Wayne Phillips was elected
mandamus or mandatory injunction for issuance of building
                                                                  mayor, Paul Phillips was elected councilman, and Mary
permit. The 3rd Judicial District Court, Henderson County,
                                                                  Phillips was appointed city secretary, all of whom are parties
R. W. Lawrence, J., entered judgment for plaintiff, and
                                                                  individually and in their official capacities. On January 19,
defendants appealed. The Court of Civil Appeals, McKay,
J., held that town zoning ordinance was vague, uncertain,         1970, Ordinance No. 1 1 was adopted by the Town Council.
indefinite and incomplete, and therefore invalid; and that city   Under the local option provisions of the Texas Liquor *761
zoning ordinance was invalid because of its failure to provide    Control Act, the Town of Coffee City legalized the sale of all
for zoning commission, and such defect was not cured by           alcoholic beverages, for off-premises consumption only, on
validating act.                                                   February 22, 1970.

                                                                  Under the provisions of Ordinance No. 1 appellee's property
Affirmed.
                                                                  was classified as ‘residential’. On August 2, 1973, appellee
                                                                  filed with the city secretary and Town Council an application
Attorneys and Law Firms                                           and request that his property be changed from ‘residential’
                                                                  classification to ‘commercial’ classification, and such request
*759 F. Wilbert Lasater, Potter, Lasater, Guinn, Minton           was denied on September 12, 1973, by the Council. 2
& Knight, Tyler, Jack Y. Hardee, Fields, Fields & Hardee,
Athens, for appellants.                                           On October 4, 1973, appellee filed an application for a
                                                                  building permit with the city secretary to construct a building
A. D. Henderson, Palestine, for appellee.                         for use as a package store and the sale of other alcoholic
                                                                  beverages. The appropriate filing fee was tendered with such
Opinion
                                                                  application. On October 25, 1973, the application for the
McKAY, Justice.                                                   building permit was refused on the ground that the property
                                                                  in question was zoned ‘residential’ under Ordinance No. 1.
Appellee, B. J. Thompson, brought suit against the Town
of Coffee City, Texas; Roland Wayne Phillips, individually        At the time of the adoption of Ordinance No. 1, January
and as mayor of Coffee City; Mary Phillips, individually and      19, 1970, the town did not have a Zoning Commission or
as city secretary of Coffee City; Paul Phillips and Wilbert       a Planning and Zoning Commission, nor did it have such a
Davis. Appellee sought to have the zoning ordinance of the        commission at the time of trial.
Town of Coffee City declared null and void, and prayed for
                                                                  Cora Bradley had an undivided interest in appellee's property
a writ of mandamus or mandatory injunction for the issuance
                                                                  at the time of the adoption of Ordinance No. 1 and had
of a building permit for the construction of a building in
                                                                  actual notice of the proposed ordinance and requested that the
which to operate a package store for the sale of alcoholic
                                                                  property be zoned ‘residential’.
beverages. The property of appellee was zoned ‘residential’




                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Coffee City v. Thompson, 535 S.W.2d 758 (1976)


                                                                  property for living purposes as distinguished from use for
The appellants, Roland Wayne Phillips, mayor, and his             business or commercial purposes. Appellants further say that
brother, Paul Phillips, a member of the Town Council, jointly     an ordinance may be adequate as a rule of civil conduct
own the package store, Kilo Drive-In, in Coffee City, and it      even though it may be too indefinite and uncertain to be
is the only package store in the Town of Coffee City located      enforced by criminal prosecution. Appellants cite Vaccaro v.
on Highway No. 155. At all times material to this case Coffee     Rougeou, 397 S.W.2d 501 (Tex.Civ.App.—Houston 1966,
City had a population not less than 200 nor more than 1,000       writ ref'd n.r.e.), a restrictive covenant case, as authority for
inhabitants.                                                      the meaning of the words ‘residential’ and ‘commercial’.

Prior to the meeting of the Council on January 19, 1970,          Appellants make the further argument that appellee knew
written notices of such meeting were posted in three public       his property was zoned residential before he acquired it and
places *762 in the Town of Coffee City at least three             before he applied for a building permit, and that he does not
days prior to such meeting. No personal notice was given to       have standing to assert the rights of others.
any property owner prior to the council meeting of January
19, 1970, regarding the proposed adoption of Ordinance            On the other hand, appellee contends that the ordinance is
No. 1. Subsequent to the passage of Ordinance No. 1,              vague, ambiguous, uncertain and incomplete because (1) it
the entire ordinance was published in the Athens Review,          fails to prohibit commercial uses of property classified or
Athens, Texas, a weekly newspaper of general circulation in       zoned residential; (2) it fails to provide any guideline for
Henderson County, Texas.                                          the city secretary in either issuing or denying a building
                                                                  permit; and (3) it fails to define uses permitted in the areas
The trial court found in conclusions of law that Ordinance        zoned residential and the areas zoned commercial. Appellee
No. 1 is invalid (1) because it is vague and indefinite in that   argues that since the ordinance fails to expressly restrict the
it does not contain a prohibition of commercial use such as       use of properties zoned residential to residential use, that
the use sought by appellee in a residential area nor does it      is, it fails to prohibit a commercial use of property zoned
define or furnish guidelines for commercial or residential use;   residential, it would have to be implied that a commercial
(2) because the Town of Coffee City failed to provide for a       use is not permitted in a residential area, and be implied that
Zoning Commission in order to exercise zoning powers as           a residential use is not permitted in area zoned commercial.
required by Art. 1011f; 3 (3) because of the failure of the       Appellee points out that the ordinance has no provision
Town of Coffee City to follow the procedural requirements of      making it unlawful or prohibiting the use of property for
Art. 1011d; (4) because of the failure of the Town of Coffee      commercial purposes in a residential area, nor does Ordinance
City to give personal notice to the appellee's predecessors in    1 contain a directive to the city secretary requiring her to deny
title and for failure to comply with the notice requirements of   a building permit for construction of a commercial building
Art. 1011d. The Court also found that Art. 974d—18, does          simply because it is located in the residential zone.
not validate Ordinance No. 1 in that the validating act has no     [1] [2] [3] In Lone Star Gas Co. v. Kelly, 140 Tex. 15,
application to an invalid ordinance such as the instant one.      165 S.W.2d 446 (Tex.Comm'n.App.1942, opinion adopted),
                                                                  it is said, ‘A statute *763 which either forbids or requires
Appellant brings three points of error contending that the        the doing of an act in terms so vague that men of common
trial court erred in declaring Ordinance No. 1 invalid (1)        intelligence must necessarily guess at its meaning and differ
for vagueness, (2) for failure of the Town of Coffee City to      as to its application violates the first essential of due process
provide for a Zoning Commission, and (3) for failure of the       of law.’
Town of Coffee City to give personal notice to appellee's
predecessors in title and for failure to comply with the
procedural requirements of Art. 1011d.                            Sanders v. State Department of Public Welfare, 472 S.W.2d
                                                                  179 (Tex.Civ.App.—Corpus Christi 1971, writ dism'd),
Appellants' first point complains that the trial court erred      contains this language:
in finding Ordinance No. 1 invalid because it is vague
                                                                            'It is a general principle of law that a
and indefinite. Appellants argue that the ordinance is not
                                                                            statute or regulation must be definite
uncertain simply because it does not define ‘residential’
                                                                            to be valid. Due process of law
and ‘commercial’, and that the word ‘residential’ has a
                                                                            in legislation requires definiteness or
clear and well understood meaning—that is, the use of
                                                                            certainty. If a regulation is incomplete,



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Coffee City v. Thompson, 535 S.W.2d 758 (1976)


          vague, indefinite and uncertain, and it
          forbids the doing of an act which is so                  Art. 1011a, provides that, ‘For the purpose of promoting
          vague, that men of common intelligence                   health, safety, morals, and for the protection and preservation
          must necessarily guess at its meaning and                of places and areas of historical and cultural importance
          that such men differ as to application, it               and significance, or the general welfare of the community,
          violates the first essential of due process              the legislative body of cities and incorporated villages
          of law.'                                                 is hereby empowered’ to regulate the use of property.
                                                                   Art. 1011b, provides that the municipal legislative body
                                                                   may divide the municipality into districts, and that ‘within
See 56 Am.Jur.2d Municipal Corporations, Sec. 367, p. 394.         such districts it may regulate and restrict the erection,
                                                                   construction, reconstruction, alteration, repair, or use of
Applying the above principles to the ordinance here in             buildings, structures, or land. All such regulations shall be
question, we are of the opinion such ordinance is vague,           uniform for each class or kind of building throughout each
uncertain, indefinite and incomplete and, therefore, invalid.      district, but the regulations in one district may differ from
It does not prohibit the building of a residence upon a            those in other districts.’
commercially zoned area, nor does it prohibit the erection
of a commercial building upon an area zoned residential. It        Art. 1011f, reads in part as follows:
simply describes a certain area as commercial, and then it         'In order to avail itself of the powers conferred by this
declares all other property is zoned residential. It does not      Act, such legislative body Shall appoint a commission, to
describe what type or kind of residential structures may be        be known as the Zoning Commission, to recommend the
built. Some buildings, such as an apartment building, may          boundaries of the various original districts and appropriate
have both residential and commercial use.                          regulations to be enforced therein. Such Commission Shall
 [4] The ordinance does not provide any criteria or guidelines     make a preliminary report and hold public hearings thereon
for the city secretary to follow in granting or refusing           before submitting its final report, and such legislative body
building permits; and, therefore, it must be implied that the      Shall not hold its public *764 hearings or take action until it
city secretary has discretionary authority without restriction     has received the final report of such Commission; . . . Written
in issuing or denying such permits. An ordinance leaving           notice of all public hearings before the Zoning Commission
the question of issuing or denying building permits to the         on proposed changes in classification Shall be sent to owners
arbitrary discretion or determination of the city secretary        of real property lying within two hundred (200) feet of the
without any rule or standard to follow is invalid. Spann v. City   property on which the change in classification is proposed,
of Dallas, 111 Tex. 350, 235 S.W. 513, 517, 19 A.L.R. 1387         such notice to be given, not less than ten (10) days before the
(1921); Crossman v. City of Galveston, 112 Tex. 303, 247           date set for hearing, to all such owners who have rendered
S.W. 810, 815, 26 A.L.R. 1210 (1923); City of Houston v.           their said property for city taxes as the ownership appears on
Freedman, 293 S.W.2d 515 (Tex.Civ.App.—Galveston 1956,             the last approved city tax roll . . .' (Emphasis added.)
writ ref'd n.r.e.); 56 Am.Jur.2d Municipal Corporations, Sec.
369, p. 396.
                                                                   Appellants contend that Art. 974d—18, a validation statute
                                                                   affecting cities and towns of 1,000 inhabitants or less, which
The only provision (Sec. IV) in the ordinance for an               became effective in 1973, cured any failure by Coffee City
application for a building permit to come before the Town          to appoint a Zoning Commission or give notice to property
Council results from the withholding of the issuance of a          owners and validated the act of the Town Council in enacting
building permit by the city secretary if she ‘shall conclude       Ordinance No. 1. Section 3 of Art. 974d—18 provides:
that the applicant is not truthfully representing the cost of                'All governmental proceedings and acts
construction . . .’                                                          performed by the governing bodies of
                                                                             such cities and towns and all officers
We overrule appellants' point one.                                           thereof since their incorporation, or
                                                                             attempted incorporation, are hereby in all
Appellants say by their point two that the trial court erred
                                                                             respects validated as of the respective
in declaring Ordinance No. 1 invalid for failure of the Town
                                                                             date of the proceedings and acts.'
Council to provide for a Zoning Commission.



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Coffee City v. Thompson, 535 S.W.2d 758 (1976)


                                                                  enact a zoning ordinance, and we see no intention on the part
Since the provisions of Art. 1011f relating to a Zoning           of the Legislature to permit the Council to totally ignore Art.
Commission are made mandatory in character by using               1011f.
the word Shall concerning the appointment of such a
Commission, it appears that the Town Council of Coffee            In City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970),
City, in order to avail itself of the power to enact a zoning     the court held that a validation act like the one here did not
ordinance, was required to appoint a Zoning Commission. No        authorize the City Council to change a zoning classification
Zoning Commission was appointed; therefore, Ordinance No.         of property by resolution—that there was no intent seen on
1 can be valid only if it is made valid by Art. 974d—18. We       the part of the Legislature to change a resolution into an
have found no Texas case, nor have we been cited one, which       ordinance, and that the property remained as it had been zoned
directly decides this question.                                   before the resolution, and the resolution was not ‘validated’
 [5] Validating acts are remedial and are to be liberally         into an ordinance.
construed. Perkins v. State, 367 S.W.2d 140, 147 (Tex.1963).
It was held in State v. Bradford, 121 Tex. 515, 50 S.W.2d          *765 The case of City of Mason v. West Texas Utilities Co.,
1065, 1078 (1932) that:                                           237 S.W.2d 273 (Tex.1951), held that curative or remedial
                                                                  statutes should generally ‘be given the most comprehensive
          '. . . where the act of some agent
                                                                  and liberal construction possible,’ but also held:
          of the state or of some agency which
                                                                  'The fundamental rule controlling the construction of a statute
          must derive its power to act from the
                                                                  is to ascertain the intention of the Legislature expressed
          Legislature is void for the reason that, at
                                                                  therein. That intention should be ascertained from the entire
          the time the act was performed legislative
                                                                  act, and not from isolated portions thereof. This Court
          power therefor had not been given,
                                                                  has repeatedly held that the intention of the Legislature in
          the Legislature may, in the absence
                                                                  enacting a law is the law itself; and hence the aim and object of
          of constitutional prohibition, supply by
                                                                  construction is to ascertain and enforce the legislative intent,
          law operating retrospectively the power
                                                                  and not to defeat, nullify, or thwart it . . . It is settled that
          originally lacking so that the act which
                                                                  the intention of the Legislature controls the language used in
          was originally void is valid and binding.'
                                                                  an act, and in construing such act the court is not necessarily
                                                                  confined to the literal meaning of the words used therein, and
                                                                  the intent rather than the strict letter of the act will control.'
                                                                  See 62 C.J.S. Municipal Corporations s 432, pp. 827—8.
The case of State v. Town of Bullard, 312 S.W.2d 435
(Tex.Civ.App.—Texarkana 1958, writ ref'd n.r.e.), cited by
Appellant cites, follows and quotes from Bradford.                In City of Waco v. City of McGregor, 523 S.W.2d 649
                                                                  (Tex.1975), McGregor maintained that a validating act, Art.
Burch v. City of San Antonio, 518 S.W.2d 540 (Tex.1975)
                                                                  974d—12, validated its attempted annexation by ordinance
held that the Legislature has the power to enact curative or
                                                                  of a strip of land 261 feet wide down U.S. Highway 84
remedial legislation and that such legislation should be given
                                                                  approximately five miles and then extending northerly to
liberal construction.
                                                                  include a 900 acre tract owned by McGregor and used as a
There seems to be no question that if the Town Council of         municipal airport. Under Art. 970a McGregor could annex
Coffee City had attempted to appoint a Zoning Commission          an unincorporated area contiguous to its corporate limits, not
or Board and there were irregularities in such procedure such     a part of any other city, within its extraterritorial limits of
irregularities would be cured by the validation statute. And if   one-half (1/2) mile, ‘provided, however, that such limitation
the Town Council had appointed a Zoning Commission and            shall not apply to the annexation of property owned by the
then there had been some irregularity in the adoption of a        city annexing the same.’ The 900 acre McGregor airport was
zoning ordinance it was the intention of the Legislature that     within the extraterritorial limits of Waco. After stating that
such irregularities would be cured. But it is difficult for us    ‘curative statutes are liberally construed only to effectuate
to see an intention on the part of the Legislature to permit      the intent of the legislature in enacting them and not to other
the Town Council of Coffee City to ignore a mandatory             ends', the court held that legislative intent must be applied,
statute requiring the appointment of a Zoning Commission.         and that the McGregor ordinance violated Art. 970a, and that
The Town Council had not availed itself of the powers to          the validating statute, Art. 974d—12, ‘was not intended to



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Coffee City v. Thompson, 535 S.W.2d 758 (1976)


and did not validate the annexation of either noncontiguous or        [6] As is said in Lawton v. City of Austin, 404 S.W.2d
nonadjacent territory,’ and that ‘the portion of the stem along      648 (Tex.Civ.App.—Austin 1966, writ ref'd n.r.e.), the police
Highway 84 which intrudes into the exclusive extraterritorial        powers of the State are exercised by the Legislature enacting
jurisdiction of Waco is not adjacent to McGregor and so              zoning laws, and the State has delegated some of this
McGregor's attempted annexation of that portion of the stem          legislative authority to municipalities. Arts. 1011a—1011j.
was not validated by Article 974d—12. Since that part of the         ‘The Legislature, of course, may put such restrictions on and
stem is not validly annexed, the airport is not contiguous to        provide the manner in which municipalities may exercise the
McGregor and so McGregor's attempted annexation of the               delegation of this authority as it sees fit.’ Lawton v. City of
airport was not validated by Article 974d—12.’ See City of           Austin, supra.
West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d
722 (Tex.1971).
                                                                     63 Tex.Jur.2d Zoning, Sec. 69, p. 836, reads in part:
This court held in Rogers v. Raines, 512 S.W.2d 725 (1974,                     'In order to avail itself of the powers
writ ref'd n.r.e.), that the same validating act as here involved,             conferred by the Zoning Enabling Act,
Art. 974d—18, did not validate an attempted incorporation of                   the governing body of a municipality
a town or village where the area sought to be incorporated did                 must appoint a zoning commission
not constitute a town or village.                                              to recommend the boundaries of the
                                                                               various original districts and appropriate
Appellant concedes ‘that initially Ordinance No. 1 was not
                                                                               regulations to be enforced therein.
legally enacted because of the failure of the town of Coffee
                                                                               The zoning commission must make
City to follow the various procedural requirements,’ but relies
                                                                               a preliminary report and hold public
entirely upon Art. 974d—18 to validate the ordinance.
                                                                               hearings thereon before submitting its
In Bolton v. Sparks, 362 S.W.2d 946 at page 950 (Tex.1962),                    final report, and the governing body
the court said:                                                                of the municipality may not hold its
                                                                               public hearings or take action until it has
          'The courts of this State have
                                                                               received the final report of the zoning
          held ordinances and amendments to
                                                                               commission . . .'
          ordinances invalid where the express,
          mandatory provisions of our zoning
          statute have not been complied with. The
                                                                     The case of Peters v. Gough, 86 S.W.2d 515 (Tex.Civ.App.
          steps directed to be taken for notice and
                                                                     —Waco 1935, no writ), opinion by Judge Alexander, held
          hearing, when provided for in the law,
                                                                     that the statutory requirements in Arts. 1011a—1011j ‘are
          are intended for the protection of the
                                                                     intended for the protection of the property owner and are his
          property owner, and are his safeguards
                                                                     safeguards against an arbitrary exercise of the powers granted
          against the exercise of arbitrary power.
                                                                     by the statute. Hence, it would appear that such preliminary
          Each act required is essential to the
                                                                     steps required by the statute are essential to the exercise of
          exercise of jurisdiction by the City
                                                                     such jurisdiction.’ To the same effect is Tonroy v. City of
          Council, and each must be rigidly
                                                                     Lubbock, 242 S.W.2d 816 (Tex.Civ.App.—Amarillo 1951,
          performed. . . .'
                                                                     writ ref'd n.r.e.); City of Amarillo v. Wagner, 326 S.W.2d 863
                                                                     (Tex.Civ.App.—Amarillo 1959, writ ref'd n.r.e.); City of San
                                                                     Antonio v. Pope, 351 S.W.2d 269 (Tex.Civ.App.—Eastland
In Storm Bros. v. Town of Balcones Heights, 239 S.W.2d
                                                                     1961, no writ).
842 (Tex.Civ.App.—El Paso 1950, writ ref'd n.r.e.), there
was some question raised about the procedure followed in             Some of the above cases point out that Art. 1011f provides
appointing the members of the Zoning Commission, and                 that, ‘In order to avail itself of the powers conferred by this
the court held that the members of the Zoning Commission             Act, such legislative body Shall appoint a commission,’ and
having been appointed and being de facto *766 members                certain order steps must be taken.
and serving as such, the validating act cured the defects
complained of.                                                       In City of Kermit v. Spruill, 328 S.W.2d 219 (Tex.Civ.App.
                                                                     —El Paso 1959, writ ref'd n.r.e.), the court said:



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Coffee City v. Thompson, 535 S.W.2d 758 (1976)



          'While the legislature may validate                     been validated. The validating act did not apply where it was
          an ordinance passed by a municipal                      sought to zone in violation of law.
          corporation which would otherwise be
          void, because of procedural defects                      [8] Accordingly, we find Ordinance No. 1 of the town of
          in the manner of enactment, notice                      Coffee City to be invalid because of the failure of the Town
          and public hearing, provided there is                   Council to provide for a Zoning Commission. We overrule
          no constitutional objection to an act                   appellants' point two.
          which would have embraced every power
          exercised in the ordinance; it does not
                                                                  Appellants' third point complains of the finding of the trial
          follow that every such validating act
                                                                  court that Ordinance No. 1 is invalid for failure to give
          is sufficient to cure substantive defects
                                                                  personal notice to appellee's predecessor in title and for failure
          which render the application or subject
                                                                  to comply with the procedural requirements of Art. 1011d.
          of the ordinance ambiguous, vague or
                                                                  In view of disposition of points one and two, this point is
          uncertain.'
                                                                  overruled.

                                                                  Appellee presents a cross-point complaining of the failure
In Richardson v. State, 199 S.W.2d 239 at page 244                of the trial court to find Ordinance No. 1 invalid because
(Tex.Civ.App.—Dallas 1946, writ ref'd n.r.e.), is found this      it does not have any substantial relationship to the public
language:                                                         health, safety, morals and general welfare of the public as
          'Acts curing defects in the incorporation               required by Art. 1011a. Appellee points out that the only
          of municipalities under the general law                 property in the town of Coffee City located on Highway
          apply where a legal incorporation was                   155 which was zoned commercial belongs to Mayor Phillips,
          sought to be established—that is, where                 his brother (who is a member of the Town Council) and
          the law was attempted to be followed, but               to Mayor Phillips' mother, and that Highway 155 is heavily
          in some particulars was not followed, and               traveled and carries substantially all of the traffic through the
          where, if the forms of law had not been                 town. Moreover, there are only three tracts of land within
          omitted, the incorporation would have                   the corporate limits located on Highway 155 and one of
          been valid. They do not apply where it                  these is owned by the Phillips family, one by Henderson
          was sought to incorporate in violation of               County used as a park, and the third tract is the tract known
          law.'                                                   as the Cora Bradley tract involved here. The Phillips' tract
                                                                  had three residential houses located on it and was zoned
                                                                  commercial while the Bradley tract had one house on it, and
We have concluded that it was not the intention of the            it was zoned residential. Ordinance No. 1 provides for seven
Legislature to validate Ordinance No. 1 of the town of            (7) specifically described areas zoned commercial, and there
Coffee City when Coffee City had not availed itself of the        are six (6) alcoholic beverage stores located in these areas
power to enact a zoning ordinance and that such failure           which are scattered at random over the town. The record
was a substantive defect. It had not appointed a Zoning           reflects that the property in the town was zoned residential or
Commission nor had it attempted to do so. There was no            commercial according to the request of the individual owner.
Zoning Commission to make a preliminary report or to hold         In our opinion this does not show an attempt to regulate in
public hearings or to make a final report to the Town Council.    accordance with a comprehensive plan as required by Art.
 [7] We are of the opinion that the reasoning in Richardson v.    1011c.
State, supra, pertaining to a validating act attempting to cure
defects in the incorporation of a municipality, is applicable     The witness, Street, a Council member at the time the
here. The analogy is that acts curing defects in zoning           ordinance was adopted testified that, as zoned, Mayor Phillips
ordinances *767 apply where a legal zoning ordinance              and his brother would have the only liquor store on Highway
was sought to be established—that is, where the law was           155, and that this result was known and discussed at the time
attempted to be followed, and where, if the town of Coffee        the ordinance in question was adopted.
City had availed itself of the power to zone and then certain
procedures had not been followed, the ordinance would have



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Coffee City v. Thompson, 535 S.W.2d 758 (1976)



Exhibit P—1 shows that the corporate limits of the town                     'When the judiciary finds it fairly obvious
consists mainly of long, narrow strips along public roads and               that a municipal ordinance was motivated
such strips have no regular shape and appear to be several                  by a desire to advance the interests of
miles in length.                                                            a particular individual, corporation or
 [9] A zoning ordinance must bear a substantial relation                    group, the courts have been quite willing
to the public health, safety, morals or general welfare, and                to invalidate the particular exercise
if by the terms of the ordinance or as established by the                   of municipal power as not having a
evidence as a matter of law it does not do so, then such                    reasonable *768 tendency to protect the
ordinance is void. Weaver v. Ham, 149 Tex. 309, 232 S.W.2d                  public health, safety, morality or general
704 (1950); City of Corpus Christi v. Jones, 144 S.W.2d                     welfare.'
388, 397 (Tex.Civ.App.—San Antonio 1940, writ dism'd); 56
Am.Jur.2d Municipal Corporations, Sec. 438, p. 487.
                                                                  If it could be said the trial court erred in failing to find the
 [10] The record reveals that the Town of Coffee City was         ordinance invalid because it bore no substantial relation to the
incorporated on December 18, 1969; that the first election of     public health, safety, morals or general welfare, in view of
officers was held on January 7, 1970; that Ordinance No. 1        our disposition of this cause, it was harmless error. Rule 434,
was passed January 19, 1970; and that a local option election     T.R.C.P.
for the sale of all alcoholic beverages was held on February
                                                                  The judgment of the trial court is affirmed.
22, 1970.
                                                                  All Citations

In Vol. 1, Antieau, Municipal Corporation Law, Sec. 516, p.       535 S.W.2d 758
5—48, is found this language:


Footnotes
1      ‘ORDINANCE I.
       'AN ORDINANCE FOR THE ISSUANCE OF BUILDING PERMITS PRESCRIBING REGULATIONS CONCERNING
       THE SETBACK OF COMMERCIAL IMPROVEMENTS FROM HIGHWAY AND ROAD RIGHT-OF-WAY DEFINING
       COMMERCIAL PROPERTY, AND RESIDENTIAL PROPERTY, PROVIDING THAT NO PERSON MAY BE ISSUED
       A BUILDING PERMIT FOR A STRUCTURE TO BE USED FOR A LIQUOR OR PACKAGE STORE OR A STORE
       FOR THE SALE OF BEER AND/OR WINE ON OR OFF PREMISES UNLESS SUCH PERSON SHALL HAVE BEEN
       A RESIDENT OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR PRIOR TO FILING SUCH APPLICATION,
       PROVIDING THAT NO PERSON SHALL ENGAGE IN THE RETAIL LIQUOR BUSINESS OR IN THE BUSINESS OF
       RETAILING BEER AND/OR WINE ON OR OFF PREMISES UNLESS SAID PERSON SHALL HAVE BEEN A RESIDENT
       OF COFFEE CITY, TEXAS, FOR AT LEAST ONE (1) YEAR, ESTABLISHING FEES FOR BUILDING PERMITS AND
       PROVIDING PENALTIES FOR THE VIOLATION OF THIS ORDINANCE IN ANY SUM NOT LESS THAN TEN ($10.00)
       DOLLARS AND NOT MORE THAN ONE HUNDRED ($100.00) DOLLARS EACH AND EVERY DAY OR A FRACTION
       THEREOF DURING WHICH THIS ORDINANCE IS VIOLATED IN DECLARING EACH SUCH DAY TO BE A SEPARATE
       OFFENSE.
       'BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF COFFEE CITY, TEXAS:
       'SECTION I.
       'This entire ordinance is and shall be deemed an exercise of the police power of the State of Texas, and of the Town of
       Coffee City, for the public safety, comfort, convenience and protection of the town and citizens of said town, and all of
       the provisions hereof shall be construed for the accomplishment of that purpose.
       'SECTION II.
       'The following property in the city limits of Coffee City, Texas, shall be and is hereby zoned commercial property:
       (The metes and bounds description is omitted.)
       'All of the rest of the property in the city limits of Coffee City, Texas, not hereinabove zoned as commercial property is
       hereby zoned as residential property and shall hereafter be residential property.
       'SECTION III.




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Coffee City v. Thompson, 535 S.W.2d 758 (1976)


      'No person shall erect any structure of any nature upon any commercial property within the limits of the town of Coffee
      City, Texas, unless said structure is set back from the boundary of the highway or public road right-of-way a minimum
      of forty (40) feet distance. No part of any structure shall extend or obtrude toward the highway or public road so as to
      be within the forty feet limit herein prescribed.
      'SECTION IV.
      'No person shall commence the construction of any building or structure of any nature whatsoever within the limits of the
      town unless that person has first obtained a building permit. Any person desiring a building permit shall make application
      to the City Secretary and shall accompany said application by the fee hereinafter prescribed. The City Secretary shall
      determine whether the proposed structure complies with all ordinances of the town and shall upon the receipt of the
      proper fee then issue a building permit. Each application for a building permit shall state the cost of the construction
      of the proposed building or other structure and the fee for such building permit shall be One Dollar ($1.00) for each
      Thousand Dollars ($1,000.00). If the City Secretary shall conclude that the applicant is not truthfully representing the cost
      of construction, she may withhold the issuance of the building permit, in which event the issuance of a permit shall be
      determined by the town council at its next regular or called meeting.
      'SECTION V.
      'All applications for building permits shall specify the purpose for which the proposed structure is to be used. Such
      application shall further state the name in full of the applicant, the age of applicant, and the length of residence in the
      corporate city limits of Coffee City. No permit shall be issued to any person for the construction of a building to be used
      as a package store or liquor store and no permit shall be issued to any person for the construction of a building to be
      used as a place of business for the retail sale of beer and/or wine either on or off premises as such terms are defined
      in the Liquor Control Act of the State of Texas unless the owner of such building shall have been a resident of the City
      of Coffee City, Texas, for not less than one (1) year prior to the filing of such application. No person shall engage in the
      retail sale of liquor or engage in the retail sale of beer and/or wine either on or off premises unless such person shall
      have been a bona fide resident of Coffee City, Texas, for at least one (1) year prior to the commencement of business.
      Nothing in this section, however, shall apply to or affect any person who is engaged in the business of retailing liquor,
      beer and/or wine on or off premises on the effective date of this act in Coffee City, Texas, and this section further does
      not affect any person who has heretofore made application for a building permit for the purpose of constructing a building
      to be used as a package or liquor store or for retailing beer and/or wine for on or off premises consumption.
      'SECTION VI.
      'Any person, firm or corporation violating any of the provisions of this ordinance of (sic) failing to observe any of the
      provisions hereof, shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than
      Ten Dollars ($10.00) nor more than One Hundred Dollars ($100.00) and each and every day or fraction of a day during
      which this ordinance or any part thereof shall be violated shall be deemed a separate offense and punishable as such.
      'SECTION VII.
      'Each and every provision, paragraph, sentence and clause of this ordinance has been separately considered and passed
      by the Town Council of the Town of Coffee City, and each said provision, paragraph, sentence and clause would have
      been separately passed without any other provision, and if any provision, paragraph, sentence or clause hereof should
      be ineffective, invalid, or unconstitutional for any cause, it shall not impair or affect the remaining portion nor any other
      part hereof, but the valid portion shall be enforced in the manner as if it had been passed alone.
      'SECTION VIII.
      'The fact that the Town of Coffee City, Texas, now has no ordinance governing the matters regulated herein and the fact
      that construction of building (sic) and other structures is not now regulated so as to protect the citizens of the Town of
      Coffee City in their property and persons as aforesaid, creates an emergency, which is here and now declared, and this
      ordinance shall take effect and be in force, from and after its passage and publication, as provided by law. ‘PASSED
      AND APPROVED THIS THE 19TH DAY OF JANUARY, 1970.’
2     Among the reasons given for denying the request to rezone were:
      (1) that the property is best suited for residential property, there being a residence close by; (2) that a tract of land adjacent
      to the land sought to be rezoned has been set aside for a public park and the best use of the property would be to remain
      residential since it is adjacent to and would be close to a public park; (3) that to rezone this property would constitute spot
      zoning; (4) that to rezone the property would interfere with the best interest and welfare of the citizens of Coffee City,
      Texas; (5) that the application to rezone the property is not in proper form and order; (6) a request was made when the
      property was originally zoned for residential, that it be zoned residential; (7) there have been complaints from citizens in
      Coffee City, Texas, to leave the property as residential property.



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    8
Coffee City v. Thompson, 535 S.W.2d 758 (1976)



3     All references are to Vernon's Texas Annotated Civil Statutes unless otherwise noted.


End of Document                                            © 2015 Thomson Reuters. No claim to original U.S. Government Works.




             © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            9
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


                                                                  (“City”) for declaratory and injunctive relief. The trial court
                                                                  held that the ordinance was preempted by the TABC. The
                    852 S.W.2d 489
                                                                  court of appeals reversed. 823 S.W.2d 347. We hold that an
                 Supreme Court of Texas.
                                                                  ordinance of a home-rule city prohibiting the sale of alcoholic
 DALLAS MERCHANT'S AND CONCESSIONAIRE'S                           beverages within 300 feet of a residential area is preempted
        ASSOCIATION et al., Petitioners,                          by the TABC. Consequently, we reverse the judgment of the
                     v.                                           court of appeals and affirm the judgment of the trial court.
         CITY OF DALLAS, Respondent.
                                                                  On September 30, 1987, the Dallas City Council (“Council”)
            No. D–2159. | April 7, 1993. |                        passed Ordinance No. 19694 (“Ordinance”), which created
            Rehearing Overruled June 3, 1993.                     new zoning categories for South Dallas. The Ordinance
                                                                  imposed a D–1 overlay on certain areas of South Dallas and
Merchants association challenged validity of home-rule            exempted certain areas that are outside of and do not effect
city's zoning ordinance dispersing location of alcohol-related    the residential areas of South Dallas. In this D–1 overlay area,
businesses. The 134th District Court, Dallas County, Anne         no business is allowed to sell or serve alcoholic beverages
Ashby Packer, J., granted relief, and city appealed. The Court    within 300 feet of residentially zoned properties not located
of Appeals, 823 S.W.2d 347, reversed and rendered, and            on a freeway service road or other specified road. However,
further appeal was taken. The Supreme Court, Hightower,           a business in a D–1 overlay area may sell or serve alcoholic
J., held that ordinance of home-rule city prohibiting sale of     beverages if the Council grants a specific use permit (SUP).
alcoholic beverages within 300 feet of residential areas was      On October 12, 1988, the Council approved Resolution
preempted by Texas Alcoholic Beverages Code.                      883306, which established the guidelines for evaluating SUP
                                                                  applications for selling or serving alcoholic beverages in areas
Reversed.                                                         of South Dallas affected by the D–1 overlay. In June 1990,
                                                                  the Merchants filed suit against the City.
Enoch, J., dissented and filed opinion in which Hecht and
Cornyn, JJ., joined.                                              Following a bench trial, the trial court rendered judgment
                                                                  which, among other things, granted the declaratory and
                                                                  injunctive relief requested by the Merchants. The trial court
Attorneys and Law Firms                                           concluded that the D–1 overlay provisions of the Ordinance
                                                                  conflicted with the TABC and was void to that extent under
*489 Richard M. Lannen, Diane Snelson, Eric V. Moy#e,
Eric R. Cromartie, David C. Godbey, Andrew L. Siegel,             article XI, section 5 of the Texas Constitution. 1 The trial
Dallas, for petitioners.                                          court also permanently enjoined the City from enforcing
                                                                  the D–1 overlay provisions of the Ordinance. The court of
Dan Morales, Austin, John Rogers, Dallas, W. Reed                 appeals reversed and rendered judgment.
Lockhoof, Austin, Analeslie U. Muncy, Fort Worth, Angela
Washington, *490 Sam A. Lindsay, Dallas, for respondent.

                                                                                                 I.

                         OPINION                                  The Merchants argue that the Ordinance is preempted by the
                                                                  TABC. We agree.
HIGHTOWER, Justice.

In this cause, we consider whether an ordinance of a
home-rule city prohibiting the sale of alcoholic beverages               PREEMPTION OF HOME–RULE CITIES
within 300 feet of a residential area is preempted by
the Texas Alcoholic Beverage Code (TABC). In 1990,                 [1] To determine whether the Ordinance is preempted by the
the Dallas Merchants and Concessionaires Association, the         Texas Alcoholic Beverage Code, we must decide whether the
Texas Package Stores Association, and other individuals           Legislature, by enacting and amending the TABC, preempted
(hereinafter “Merchants”) filed suit against the City of Dallas   ordinances of home-rule cities that prohibit the sale of
                                                                  alcoholic beverages under these circumstances. Home-rule


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Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


cities have broad discretionary powers, provided that no             City of Abilene, 712 S.W.2d 644 (Tex.App.—Eastland 1986,
ordinance “shall contain any provision inconsistent with the         writ ref'd n.r.e.).
Constitution of the State, or of the general laws enacted by the
Legislature of this State.” TEX. CONST. art. XI, § 5. Home-          Subsequently, in 1987, the Legislature added section 109.57
rule cities possess the full power of self government and look       to the TABC and further amended it in 1991 to read in part:
to the Legislature not *491 for grants of power, but only for
limitations on their power. MJR's Fare of Dallas v. City of        (a) Except as expressly authorized by this code, a
Dallas, 792 S.W.2d 569, 573 (Tex.App.—Dallas 1990, writ            regulation, charter, or ordinance promulgated by a
denied).                                                           governmental entity of this state may not impose stricter
                                                                   standards on premises or businesses required to have a
 [2] [3] [4] [5] An ordinance of a home-rule city that license or permit under this code than are imposed on
attempts to regulate a subject matter preempted by a state         similar premises or businesses that are not required to have
statute is unenforceable to the extent it conflicts with the state such a license or permit.
statute. See City of Brookside Village v. Comeau, 633 S.W.2d
                                                                   (b) It is the intent of the legislature that this code shall
790, 796 (Tex.1982), cert. denied, 459 U.S. 1087, 103 S.Ct.
                                                                   exclusively govern the regulation of alcoholic beverages
570, 74 L.Ed.2d 932 (1982). However, “the mere fact that the
                                                                   in this state, and that except as permitted by this code,
legislature has enacted a law addressing a subject does not
                                                                   a governmental entity of this state may not discriminate
mean the complete subject matter is completely preempted.”
                                                                   against a business holding a license or permit under this
City of Richardson v. Responsible Dog Owners, 794 S.W.2d
                                                                   code.
17, 19 (Tex.1990). “[A] general law and a city ordinance will
not be held repugnant to each other if any other reasonable        (c) Neither this section nor Section 1.06 of this code affects
construction leaving both in effect can be reached.” City of       the validity or invalidity of a zoning regulation that was
Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202, 206 (1927).          formally enacted before June 11, 1987 and that is otherwise
Thus, if the Legislature chooses to preempt a subject matter       valid, or any amendment to such a regulation enacted after
usually encompassed by the broad powers of a home-rule             June 11, 1987 if the amendment lessens the restrictions
city, it must do so with unmistakable clarity. See City of         on the licensee or permittee or does not impose additional
Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.1964).               restrictions on the licensee or permittee. For purposes of
                                                                       this subsection, “zoning regulation” means any charter
                                                                       provision, rule regulation, or other enactment governing
       TEXAS ALCOHOLIC BEVERAGE CODE                                   the location or use of buildings, other structures, and land.

[6]    In 1977, the Legislature codified the Texas Liquor            TEX.ALCO.BEV.CODE ANN. § 109.57(a), (b) & (c)
                                                                     (Vernon Supp.1992). The Legislature's intent is clearly
Control Act into the TABC. 2 Prior to the codification,
                                                                     expressed in section 109.57(b) of the TABC—the
several courts of appeals held that various ordinances of
                                                                     regulation of alcoholic beverages is exclusively governed
home-rule cities prohibiting the sale of alcoholic beverages
                                                                     by the provisions of the TABC unless otherwise *492
were not preempted by the Texas Liquor Control Act.
See, e.g., City of Clute v. Linscomb, 446 S.W.2d 377                 provided. 3 TEX.ALCO.BEV.CODE ANN. § 109.57(b)
(Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Louder             (Vernon Supp.1992). Section 109.57 clearly preempts an
v. Texas Control Board, 214 S.W.2d 336 (Tex.Civ.App.                 ordinance of a home-rule city that regulates where alcoholic
—Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs,                beverages are sold under most circumstances. 4 Accordingly,
142 S.W.2d 374 (Tex.Civ.App.—Austin 1940, no writ).                  we hold that, to the extent of any conflict, the TABC preempts
Subsequent to the codification, the Eleventh Court of Appeals        the Ordinance. 5
held that the TABC did not preempt ordinances prohibiting
the sale of alcoholic beverages. See Young, Wilkinson &
Roberts v. City of Abilene, 704 S.W.2d 380, 383 (Tex.App.
—Eastland 1985, writ ref'd n.r.e.) (“We hold that the                                             II.
Constitution and general statutes of this State do not deny the
                                                                     The City argues that if section 109.57 preempts an ordinance
City [a home rule city] the right to regulate the area of the City
                                                                     of a home-rule city regulating where alcoholic beverages
in which liquor could be sold.”); Abilene Oil Distributors v.


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Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


are sold, sections 61.37, 109.31, 109.32, and 109.33 will be      TABC. Therefore, we reverse the judgment of the court of
                       6                                          appeals and affirm the judgment of the trial court.
rendered meaningless. We disagree.

 *493 [7]      Section 109.57 expressly states that the
TABC will exclusively govern the regulation of                    Dissenting opinion by ENOCH, J., joined by HECHT and
alcoholic beverages except as otherwise provided by the           CORNYN, JJ.
TABC. 7 TEX.ALCO.BEV.CODE ANN. § 109.57 (Vernon
Supp.1992). Thus, the TABC allows ordinances of home-
                                                                  ENOCH, Justice, dissenting.
rule cities to prohibit the sale of alcoholic beverages only
                                                                  The city of Dallas faces a severe impediment to its
under limited circumstances. Pursuant to section 109.31, the
                                                                  redevelopment efforts for a portion of its community
sale of liquor may be prohibited within residential areas
                                                                  (South Dallas) that suffers disproportionately from poverty
only by charter. TEX.ALCO.BEV.CODE ANN. § 109.31
                                                                  and crime. The Dallas Merchant's and Concessionaire's
(Vernon 1978). Under section 109.32, the sale of beer may
                                                                  Association, the Texas Package Stores Association, Inc.,
be prohibited within residential areas by ordinance or charter.
TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978).                    and the five grocery and liquor store owners 1 who are
These options are still available to the City. However, in        petitioners in this Court all readily concede that alcohol-
this case, the Ordinance attempts to prohibit the sale of         related businesses are overly concentrated in certain areas of
liquor and beer in non-residential areas. An ordinance may        the City of Dallas, that this concentration of such businesses
not prohibit the sale of beer in non-residential areas or         causes severe problems in these areas, and that the City
the sale of liquor in residential or non-residential areas.       of Dallas adopted Ordinance No. 19694 to reduce this
See TEX.ALCO.BEV.CODE ANN. §§ 109.31–32 (Vernon                   concentration and alleviate these problems. Today the Court
1978).                                                            adopts petitioners' argument that, regardless, the Legislature
                                                                  requires these matters to only be addressed by the Texas
 [8] Section 109.33 permits a county or city to prohibit          Alcoholic Beverage Commission in Austin, and not by the
the sale of alcoholic beverages by a dealer whose place           Dallas City Council. As much as we all are concerned about
of business is within 300 feet of a church, school,               community restoration, I too would have joined the majority
or public hospital. TEX.ALCO.BEV.CODE § 109.33(a)                 if the law required this result. But, the Court's decision is not
(Vernon Supp.1992). This option is still available to the         mandated by the law. Therefore I dissent.

City. 8 However, in this case, the Ordinance attempts to
                                                                  Ordinance No. 19694 prohibits the location of businesses
prohibit the sale of alcoholic beverages within 300 feet of a
                                                                  selling or serving alcoholic beverages within 300 feet of
residential area—not within 300 feet of a church, school or
                                                                  residentially zoned property in certain areas of the city
public hospital.
                                                                  without a special use permit. The issue before us is
                                                                  whether this limited restriction on the location of alcohol-
 [9] Likewise, section 61.37 does not conflict with section
                                                                  related businesses is preempted by TEX.ALCO.BEV.CODE
109.57. Section 61.37 states that a city secretary will merely
                                                                  § 109.57(a) and (b). Section 109.57(a) provides that an
certify whether an ordinance or charter prohibits the sale of
                                                                  ordinance “may not impose stricter standards on premises
alcoholic beverages in the area where alcoholic beverages
                                                                  or businesses” required to be licensed under the Code than
will potentially be sold. TEX.ALCO.BEV.CODE ANN. §
                                                                  on similar premises or businesses. (emphasis added). Section
61.37 (Vernon 1978). Under this section, certification is
                                                                  109.57(b) states that “it is the intent of the legislature that
properly withheld only if an ordinance or charter prohibits the
                                                                  this code shall exclusively govern the regulation of alcoholic
 *494 sale of alcoholic beverages in a manner allowed by the
                                                                  beverages in this state, and that except as permitted by this
TABC. See TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon
                                                                  code, a governmental entity of this state may not discriminate
1978).
                                                                  against a business holding a license or permit under this
                                                                  code.” (Emphasis added.)
We recognize the benefits of ordinances which prohibit
the sale of alcoholic beverages under these circumstances.
                                                                  In my view, Ordinance No. 19694 does not “impose stricter
However, the express language of section 109.57 compels
                                                                  standards on alcohol-related businesses or premises” within
this court to give effect to the Legislature's clear intent—
                                                                  the meaning of section 109.57(a). Rather, it restricts the
the Ordinance is preempted to the extent it conflicts with the


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Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


location of such businesses in some areas under some               control of the same person.” TEX.ALCO.BEV.CODE ANN.
conditions. Nor does the ordinance attempt a “regulation of        § 11.49(a) (Vernon 1978). Section 11.49(a) refers only to the
alcoholic beverages.” The ordinance has nothing to do with         physical premises; it does not define “premises” to include
beverages. Nor does the ordinance “discriminate” against           the location of a licensed business. The Ordinance does
alcohol-related businesses. It merely imposes a restriction        not attempt to regulate the physical premises. Additionally,
on their location to alleviate community problems which            nothing in the Ordinance addresses how the business of
petitioners concede such businesses cause. 2 This Ordinance        selling alcohol is to be conducted. The Ordinance only
is not, on its face, inconsistent or in conflict with state law.   regulates the location of the business.
The ordinance is a reasonable supplement to state law to
address a local problem. Both should remain in effect.             The Court recognizes that a city ordinance will not be
                                                                   held repugnant to a general law of the state “if any
Assuming for the sake of argument that “location” may be           other reasonable construction leaving both in effect can be
considered a type of *495 “standard” governing businesses,         reached,” 852 S.W.2d at 491, (citing to City of Richardson
the law would still not mandate the outcome claimed by the         v. Responsible Dog Owners, 794 S.W.2d 17 (Tex.1990)).
Court. The Local Government Code states:                           Because a reasonable reading of these two statutes prevents
                                                                   the conflict the reasoning of the Court creates, there is no
             If a zoning regulation adopted under                  basis for restricting the City of Dallas' grant of authority to
             this subchapter ... imposes higher                    promulgate zoning regulations under sections 211.001–.013
             standards than those required under                   of the Local Government Code.
             another statute or local ordinance
             or regulation, the regulation adopted                 The Court's holding seriously hampers the ability of
             under this subchapter controls. If the                municipalities to combat problems associated with the sale
             other statute or local ordinance or                   of alcohol. The City of Dallas did not seek to prohibit the
             regulation imposes higher standards,                  sale of alcohol, merely to disperse the locations for its sale
             that statute, ordinance, or regulation                in order to achieve a reduction in the problems associated
             controls.                                             with the sale of alcohol such as increased crime, drinking
                                                                   on premises, litter, loitering, public intoxication, urinating in
TEX.LOC.GOV'T CODE ANN. § 211.013(a) (Vernon 1988)
                                                                   public, and harassment of children and elderly residents. 3
(emphasis added).
                                                                   As petitioners admit, if cities cannot restrict the location of
                                                                   alcohol-related businesses, then only the Texas Alcoholic
The Court's reading of section 109.57 of the Alcoholic
                                                                   Beverage Commission can, in the course of granting licenses
Beverage Code creates a direct conflict between it and section
                                                                   to businesses. Yet it would be virtually impossible for the
211.013(a). 852 S.W.2d 489, 493 n. 7. Where possible, courts
                                                                   Commission to obtain sufficient information in licensing
are to construe language used in statutes so as to harmonize all
                                                                   proceedings to determine whether, how and where to impose
relevant laws, not create conflict. La Sara Grain Co. v. First
                                                                   such restrictions in the dozens of cities where they might
Nat'l Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984);
                                                                   be used. Petitioners admit that the Commission has not
State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex.1937).
                                                                   undertaken this responsibility to date, and it is farfetched
Since it is possible, this court must construe the Local
                                                                   to think the Commission would even try. The suggestion
Government Code and the Alcoholic Beverage Code so that
                                                                   that the Legislature has decided that the Commission should
both provisions are given effect.
                                                                   address the local problems involved here instead of home-rule
                                                                   cities is most unlikely. Only those local planning, zoning and
Section 109.57(a) prohibits a city from imposing stricter
                                                                   legislative bodies have, or can be expected to have, a pulse on
standards on premises or businesses licensed under the
                                                                   the particular land use needs of their jurisdiction.
Alcoholic Beverage Code than are imposed on similar
premises or businesses not required to have a license.
                                                                    *496 I agree with the Court that “if the Legislature chooses
TEX.ALCO.BEV.CODE ANN. § 109.57(a) (Vernon 1978)
                                                                   to preempt a subject matter encompassed by the broad
(emphasis added). The Alcoholic Beverage Code defines
                                                                   powers of a home-rule city, it must do so with unmistakable
“premises” as “the grounds and all buildings, vehicles,
                                                                   clarity.” 852 S.W.2d at 491. Whatever may be said of section
and appurtenances pertaining to the grounds, including any
                                                                   109.57, it cannot seriously be argued that the statute makes
adjacent premises if they are directly or indirectly under the


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Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)



unmistakably clear that the Legislature has preempted the
City of Dallas from exercising its broad zoning powers to
improve living conditions within its borders. Preemption is         HECHT and CORNYN, JJ., join in this dissenting opinion.
even less likely when one considers the result.
                                                                    All Citations
I would affirm the judgment of the court of appeals, thus I
                                                                    852 S.W.2d 489
respectfully dissent.


Footnotes
1      In the findings of fact, the trial court stated in part:
             14. None of the SUPs filed by any Establishment within the areas zoned D–1 by Ordinance 19694 had been granted.
             15. The criteria adopted by the Dallas City Council make it virtually impossible for any existing Establishment to
             qualify for a SUP.
             16. Ordinance 19694 conflicts with and is preempted by the Texas Alcoholic Beverages Code (“TABC”), in that: the
             Ordinance and the SUP standards impose location restrictions that are inconsistent with the TABC; the Ordinance
             and the SUP standards attempt to regulate the sale of alcoholic beverages, other than beer, by ordinance; the
             Ordinance and the SUP standards discriminate against establishments holding permits issued under the TABC, and;
             the Ordinance and the SUP standards impermissibly attempt to disenfranchise the choice of the voters of the areas
             affected by Ordinance 19694 in violation of the Local Option provisions and procedures set forth in the TABC.
2      “[The TABC] is intended as a recodification only, and no substantive change in the law is intended by this Act.” Acts
       1977, 65th Leg., ch. 194, § 7.
3      While the dissent contends that the legislature did not deny home rule cities the ability to regulate with unmistakable
       clarity under these circumstances, how much more clear must the legislature be than Section 109.57(b), which states:
       “It is the intent of the legislature that this code [TABC] shall exclusively govern the regulation of alcoholic beverages in
       this state....” TEX.ALCO.BEV.CODE ANN. § 109.57(b) (Vernon Supp.1992). In addition, Senator McFarland, who was a
       member of the Conference Committee on H.B. 1652 which enacted Section 109.57, indicated that Section 109.57 was
       intended to clarify that the TABC governed the location of licensees and permittees and that cities could only regulate
       the location of licensees and permittees in the instances provided by the TABC. Specifically, Senator McFarland stated,
             [I]t [Section 109.57] says except as authorized by this code [a governmental entity may not regulate the location of
             a business holding a license or a permit] and there's numerous provisions throughout the code which governmental
             entities have the authority by zoning or other ordinances, to limit the location of businesses or the type of businesses
             selling alcoholic beverage.
          Debate of conference committee report on Tex.H.B. 1652 on the floor of the Senate, 70th Leg. (June 1, 1987) (colloquy
          between Senators McFarland and Washington).
4      Section 109.57(d) of the TABC states:
             (d) This section does not effect the authority of a governmental entity to regulate, in a manner as otherwise permitted
             by law, the location of:
             (1) a massage parlor, nude modeling studio, or other sexually oriented business; or
             (2) an establishment that derives 75 percent or more of the establishment's gross revenue from the on-premise sale
             of alcoholic beverages.
          Because none of the parties assert that the Ordinance implicates this provision, we express no opinion concerning
          its applicability.
          Since the following cases pre-date the enactment of section 109.57, they are not applicable when determining the
          preemptive effect of section 109.57. See Abilene Oil Distributors v. City of Abilene, 712 S.W.2d 644 (Tex.App.—
          Eastland 1986, writ ref'd n.r.e.); Young, Wilkinson & Roberts v. City of Abilene, 704 S.W.2d 380 (Tex.App.—Eastland
          1985, writ ref'd n.r.e.); T & R Assoc., Inc. v. City of Amarillo, 688 S.W.2d 622, 625 (Tex.Civ.App.—Amarillo, writ
          ref'd n.r.e.); Massengale v. City of Copperas Cove, 520 S.W.2d 824, 829 (Tex.Civ.App.—Waco 1975, writ ref'd n.r.e.;
          Derkard v. City of Port Lavaca, 491 S.W.2d 748, 751 (Tex.Civ.App.—Corpus Christi 1973, no writ); City of Clute v.
          Linscomb, 446 S.W.2d 377 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ); Discount Liquors No. 2, Inc. v. Texas
          Liquor Control Board, 420 S.W.2d 422, 423, 425 (Tex.Civ.App.—Amarillo 1967, writ ref'd n.r.e.); Louder v. Texas




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Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


         Liquor Control Board, 214 S.W.2d 336 (Tex.Civ.App.—Beaumont 1948, writ ref'd n.r.e.); Eckert v. Jacobs, 142 S.W.2d
         374 (Tex.Civ.App.—Austin 1940, no writ).
5     The dissent argues that if this court holds that the TABC preempts an ordinance regulating where alcoholic beverages
      are sold, sellers of alcoholic beverages will not have to comply with any city ordinance. This argument is without merit.
      Section 109.57(a) provides that an ordinance may not impose stricter standards on alcohol related businesses than on
      non-alcohol related businesses. TEX.ALCO.BEV.CODE § 109.57(a) (Vernon Supp.1992). For example, under section
      109.57(a), an ordinance requiring all businesses with the same kind of premises to have a fire extinguisher on their
      premises would not violate section 109.57(a). On the other hand, an ordinance requiring an alcohol related business to
      have two fire extinguishers and only required a non-alcohol related business with the same kind of premises to have one
      fire extinguisher would violate section 109.57(a).
6     Section 61.37 reads in pertinent part:
            (a) The County Clerk of the county in which an application for a license is made shall certify whether the location or
            address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license
            is sought is prohibited by any valid order of the commissioners court.
            (b) The city secretary or clerk of the city in which an application for a license is made shall certify whether the location
            or address given in the application is in a wet area and whether the sale of alcoholic beverages for which the license
            is sought is prohibited by charter or ordinance.
         TEX.ALCO.BEV.CODE ANN. § 61.37 (Vernon 1978). Section 109.31 reads:
            A city by charter may prohibit the sale of liquor in all or part of the residential sections of the city.
         TEX.ALCO.BEV.CODE ANN. § 109.31 (Vernon 1978). Section 109.32 reads in pertinent part:
            (a) An incorporated city or town by charter or ordinance may:
            (1) prohibit the sale of beer in a residential area; and
            (2) regulate the sale of beer and prescribe hours when it may be sold, except a city or town may not permit the sale
            of beer when its sale is prohibited by this code.
         TEX.ALCO.BEV.CODE ANN. § 109.32 (Vernon 1978). Section 109.33 reads in pertinent part:
            (a) The commissioners court of a county may enact regulations applicable in areas in the county outside an
            incorporated city or town, and the governing board of a city or town may enact regulations applicable in the city or
            town, prohibiting the sale of alcoholic beverages by a dealer whose place of business is within 300 feet of a church,
            public school, or public hospital.
         TEX.ALCO.BEV.CODE ANN. § 109.33 (Vernon Supp.1992).
7     The dissent incorrectly asserts that Section 211.013 of the Local Government Code allows a home rule city to impose
      higher standards upon licensees and permittees. This conclusion is erroneous because of Section 109.57(a) of the TABC.
      Section 109.57(a) states than an ordinance promulgated by a governmental entity may not impose stricter standards on
      premises or businesses of a permittee than on similar premises and businesses not required to have a license or permit.
      The Ordinance imposes a stricter standard than allowed by the TABC, specifically, by regulating the location of businesses
      required to have licenses or permits under the TABC in circumstances not allowed by the TABC. Section 109.57(a) was
      by its terms enacted to exempt licensees and permittees from Section 211.013 of the Local Government Code.
         The application of the doctrine of expressio unius est exclusio alterius further demonstrates the weakness of the
         dissent's conclusion that the City may regulate in this instance. That doctrine provides that the inclusion of a specific
         limitation excludes all others. Royer v. Ritter, 531 S.W.2d 448, 449 (Tex.Civ.App.—Beaumont 1976, writ ref'd n.r.e.).
         Sections 109.31–33 and 109.57(d) provide specific instances when a governmental entity, such as a home-rule city,
         may regulate the location of an alcohol related business. Thus, by expressly stating under what circumstances a
         governmental entity may regulate the location of an alcohol related business, it follows that there are no other instances
         when a governmental entity may regulate the location of an alcohol related business. The parties do not assert and
         we can not find any applicable grant of power to governmental entities to regulate the location of the sale of alcohol
         in this case.
8     In addition to regulating alcoholic beverages pursuant to sections 109.31–33, a city may make recommendations or
      protest the issuance of a permit by the Texas Alcoholic Beverage Commission. See TEX.ALCO.BEV.CODE ANN. §
      11.41(a) (Vernon 1978).
1     The five business owners are Solomon Tadesse, d/b/a S & M Grocery, Nguyen Ha Lam, d/b/a M & D Liquor, Son Ngoc
      Nguyen, d/b/a Bingo Liquor, Youg Suk Bragdon, d/b/a K & B Grocery, and Thung Vam Tarn, d/b/a Lee's Grocery.
2     This is not to say that any ordinance restricting the location of alcohol-related businesses would be allowed by state law.
      Obviously, an ordinance that prohibited the location of such businesses within a much larger distance from residential



              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    6
Dallas Merchant's and Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (1993)


      property might have the effect of eliminating those businesses altogether. Such an ordinance would conflict with state
      law. But an ordinance which is both written and applied to impose a limited restriction on location for a valid purpose
      does not conflict with section 109.57.
3     Several community leaders in the South Dallas/Fair Park area testified that these problems were exacerbated by the
      excessive concentration of alcohol related businesses in the area.


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            7
Hager v. Romines, 913 S.W.2d 733 (1995)


                                                                  of error. We sustain point of error one, reverse the judgment
                                                                  entered for the Romineses, and render judgment for Hager.
                     913 S.W.2d 733
                Court of Appeals of Texas,
                                                                   [1] In his first point of error, Hager argues that the trial
                       Fort Worth.
                                                                  court erred when it overruled his motion for instructed verdict
        Anthony Ray HAGER, Individually and                       because the Romineses presented no evidence of a violation
        d/b/a Hager's Flying Service, Appellant,                  of the standard of care applicable to their claim of negligence.
                           v.                                     The Romineses claimed that Hager was negligent in his
                                                                  application of herbicide to a nearby field and that their tomato
              Thomas R. ROMINES and
                                                                  and jalapeño plants were damaged because of the negligence.
              Betty Romines, Appellees.
                                                                  In reviewing whether the trial court erred in refusing to
         No. 2–95–066–CV.          |   Dec. 28, 1995.             instruct a verdict in Hager's favor, our task is to determine
                                                                  whether: (1) a specified defect in the opponent's pleading
Farmers whose crop was allegedly damaged by aerial                makes it insufficient to support a judgment; (2) the evidence
applicator's crop dusting of nearby field sued applicator for     conclusively establishes the right of the movant to judgment
negligence. The 97th District Court, Clay County, Roger E.        or negates the right of the opponent; or (3) the evidence
Towery, J., denied defendant's motion for instructed verdict      is insufficient to raise a fact issue that must be established
and awarded damages on jury verdict for plaintiffs. Defendant     before the opponent is entitled to judgment. Boswell v. Farm
appealed. The Court of Appeals, Livingston, J., held that         & Home Sav. Ass'n, 894 S.W.2d 761, 768 (Tex.App.—Fort
plaintiffs could not recover absent evidence that defendant did   Worth 1994, writ denied); Rowland v. City of Corpus Christi,
not act as reasonably prudent aerial applicator.                  620 S.W.2d 930, 932–33 (Tex.Civ.App.—Corpus Christi
                                                                  1981, writ ref'd n.r.e.); see also TEX.R.CIV.P. 268.
Reversed and rendered.
                                                                   [2] [3] To avoid an instructed verdict, the Romineses had
                                                                  to offer evidence for each element of their negligence claim.
Attorneys and Law Firms                                           The elements of a negligence claim are: (1) the existence
                                                                  of a duty on the part of one party to another; (2) a breach
*734 Stephen C. Howell, Stephen L. Tatum, Geffrey W.
                                                                  of the duty; (3) damages to whom the duty was owed; and
Anderson, Brown, Herman, Scott, Dean & Miles, L.L.P., Fort
                                                                  (4) causation. See Rosas v. Buddies Food Store, 518 S.W.2d
Worth, for appellant.
                                                                  534, 536 (Tex.1975). For breach of duty, they must have
Ron Poole, William K. Altman & Associates, Wichita Falls,         presented evidence that Hager did not exercise the care that
for appellee.                                                     a reasonably prudent aerial applicator would have exercised
                                                                  under the same or similar circumstances. See Parkway Co.
Before LIVINGSTON, BRIGHAM and HOLMAN, JJ.                        v. Woodruff, 857 S.W.2d 903, 919 (Tex.App.—Houston [1st
                                                                  Dist.] 1993, no writ), aff'd as modified, 901 S.W.2d 434
                                                                  (Tex.1995). We find that the standard of care in the aerial
                         OPINION                                   *735 application of herbicide, as well as the violation
                                                                  of such standard, must be established by expert testimony.
LIVINGSTON, Justice.                                              Expert testimony is necessary when the alleged negligence
                                                                  is of such a nature that it is not within the experience of a
Thomas and Betty Romines grew tomatoes and jalapeños
                                                                  layman. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). Not
on one-half acre of land in Clay County, Texas. When their
                                                                  only is flying an airplane not within the realm of experience
plants began dying from exposure to herbicide, they sued
Hager Flying Service and Anthony Ray Hager, who had               of the ordinary, prudent person or juror, 1 applying herbicide
applied herbicide from a crop dusting airplane to a nearby        and pesticide aerially requires use of specialized equipment
field the same day the Romineses noticed that their tomato        and techniques that are not familiar to the ordinary person.
plants were sick. At trial, the court denied Hager's motion
for instructed verdict. The jury awarded Thomas and Betty          [4]    [5] Thus, the question before us is whether the
Romines $45,000 as damages. Hager appeals in five points          Romineses presented sufficient evidence of breach of the duty
                                                                  of care to raise a fact issue on that element. We hold that



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Hager v. Romines, 913 S.W.2d 733 (1995)


                                                                       applicator. In fact, Pluenneke did not even know whether
they did not. Hager testified as an expert about the standard
                                                                       Hager had applied the herbicide with a coarse or fine spray,
of care applicable to aerial applicators. He also testified that
                                                                       which could affect the herbicide's ability to drift.
he had not breached that standard of care. A party may give
expert testimony if the party is qualified to do so. See, e.g.,
                                                                       On appeal, the Romineses claim that Hager's testimony on
Tijerina v. Wennermark, 700 S.W.2d 342, 347 (Tex.App.
—San Antonio 1985, no writ), overruled on other grounds                cross-examination shows that he violated the standard of care.
by Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989).                 The Romineses' attorney asked Hagar, “[W]ould you agree
Further, if expert testimony is required on an issue, and              that, if it was some Grazon P + D out of your airplane on
that expert testimony is uncontroverted, the testimony is              June 3rd, 1990, that got on the Romines tomato field, that you
considered conclusively established. Mack v. Moore, 669                would have been negligent?” Hagar agreed. The Romineses
S.W.2d 415, 419 (Tex.App.—Houston [1st Dist.] 1984, no                 say that this is expert testimony of a violation of the standard
writ). The Romineses needed to controvert Hager's testimony            of care because they proved that it was Hager's Grazon P +
                                                                       D that caused the damage to the tomato and jalapeño plants.
with their own expert testimony so that Hager's testimony
                                                                       Two witnesses observed from one-half mile away that Hager's
about his compliance with the standard of care would not be
                                                                       crop dusting airplane flew over the Romineses' home. Two
conclusive.
                                                                       witnesses testified that they could smell the spray even though
                                                                       they were upwind from the field that Hager sprayed. One
 [6] The Romineses called two expert witnesses, Floyd
                                                                       testified that he could see “stuff” drifting in the air. However,
Mahaney and Ricks Pluenneke. Mahaney was a herbicide and
                                                                       independent of causation evidence, Hager's testimony does
pesticide specialist with the Texas Department of Agriculture
                                                                       not indicate that he did not adhere to the standard of care.
who testified about the effect of herbicide on tomato plants.
                                                                       The Romineses' argument is an attempt to bootstrap lay
He also testified about a possible “drift pattern” between the
                                                                       witnesses' testimony on causation into expert testimony on
Romineses' tomato field and the field to which Hager had
                                                                       a violation of the standard of care. No expert witness ever
applied herbicide. He concluded that herbicide might have
                                                                       testified that Hager had violated the standard of care. Because
drifted because weeds between the two fields showed effects
                                                                       the Romineses failed to present evidence on a breach of the
from herbicide. However, he could not identify the herbicide
                                                                       standard *736 of care, their claim should not have been
that hurt the tomatoes as Grazon P + D, the herbicide that
                                                                       submitted to a jury.
Hager had sprayed. He did not testify about herbicide effects
on jalapeño plants. Also, he did not give any testimony that
                                                                       Accordingly, we reverse the judgment of the trial court and
showed that Hager had not acted as a reasonably prudent
                                                                       render judgment that the Romineses take nothing against
aerial applicator.
                                                                       Hager.
Pluenneke was an expert on plant physiology and agronomy.
He testified that Hager had caused the damage to the tomato
                                                                       All Citations
and jalapeño plants based on his knowledge of the plants
involved and of the herbicide. However, this is not testimony          913 S.W.2d 733
that Hager had not acted as a reasonably prudent aerial


Footnotes
1      McKinney v. Air Venture Corp., 578 S.W.2d 849, 851 (Tex.Civ.App.—Fort Worth 1979, writ ref'd n.r.e.).


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  2
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507



                  2009 WL 140507                                                        I. Background
    Only the Westlaw citation is currently available.

          SEE TX R RAP RULE 47.2 FOR                                            A. Order Transferring Venue
    DESIGNATION AND SIGNING OF OPINIONS.
                                                                 Valdez filed a motion to transfer venue from DeWitt County
             MEMORANDUM OPINION                                  to Nueces County asserting that DeWitt County was not a
              Court of Appeals of Texas,                         county of proper venue because the Jacksons pleaded no facts
              Corpus Christi-Edinburg.                           to support venue there. Valdez pleaded facts supporting venue
                                                                 in Nueces County under the general venue statute and also
   Phillip JACKSON and Mary Jackson, Appellants,                 urged that transfer of venue was for the convenience of the
                           v.                                    parties. See id. § 15.002(a)(1)-(3), (b) (Vernon 2002). Without
        Mayor Samuel Loyd NEAL and District                      challenging the facts relied upon by Valdez, the Jacksons
           Attorney Carlos Valdez, Appellees.                    argued in their response that venue was proper in DeWitt
                                                                 County because they would be prejudiced by the transfer.
        No. 13-07-00164-CV.        |   Jan. 22, 2009.            Prior to submission of the motion, Phillip requested that a
                                                                 bench warrant be issued. It appears from the record, however,
On appeal from the 28th District Court of Nueces County,         that no hearing was held and, on November 16, 2006, after
Texas, Nanette Hasette, J.                                       considering the motion by written submission, the trial court
                                                                 transferred the case to Nueces County. The order did not
Attorneys and Law Firms
                                                                 specify the grounds upon which the transfer was granted.
Phillip Jackson, Mary J. Jackson, Corpus Christi, TX, pro se.
                                                                 On December 19, 2006, the Jacksons appealed the order
Jenny C. Boyd, Asst. County Atty., Carol Estes Bray, Asst.       transferring venue. In March 2007, this Court dismissed
City Atty., Corpus Christi, TX, for Appellees.                   the appeal for lack of jurisdiction. See Jackson v. Neal,
                                                                 No. 13-06-700-CV, 2007 Tex.App. LEXIS 1786, *2, 2007
Before Chief Justice VALDEZ and Justices RODRIGUEZ               WL 687289 (Tex.App.-Corpus Christi Mar.8, 2007, no
and BENAVIDES.                                                   pet.)(mem.op.) (per curiam) (dismissing the appeal because
                                                                 the law does not provide for judicial review of an
                                                                 interlocutory order transferring venue) (citing TEX. CIV.
               MEMORANDUM OPINION                                PRAC. & REM.CODE ANN. § 15.064 (Vernon 2002);
                                                                 TEX.R.APP. P. 42.3(a)).
Memorandum Opinion by Justice RODRIGUEZ.

 *1 Appellant, Phillip Jackson, a prison inmate, appeals,
pro se, on behalf of himself and his mother, appellant                          B. Order Granting Neal's
Mary Jackson. The Jacksons filed suit in DeWitt County                        Motion for Summary Judgment
against appellees, former Mayor Samuel Loyd Neal and
                                                                 Neal filed a motion for summary judgment and severance.
District Attorney Carlos Valdez. 1 By their suit, the Jacksons
                                                                 In his supporting affidavit, Neal set out that he had neither
challenged civil forfeiture proceedings. The trial court
                                                                 involvement in nor knowledge of the seizure or forfeiture
granted summary judgment in favor of Neal and dismissed,
                                                                 proceedings relevant to this case. The Jacksons responded
without prejudice, the Jacksons' claims under chapter 14 of
                                                                 arguing that Neal was the “head of” and the “key factor in” the
the Texas Civil Practice and Remedies Code. SeeTEX. CIV.
                                                                 civil conspiracy, “was directly involved with the theft, grand
PRAC. & REM.CODE ANN. § 14.001-.014 (Vernon 2002)
                                                                 theft and fraud,” and entered “into [an] agreement with all
(setting out the process for certain inmate litigation). Eight
                                                                 other defendant[s] to take [their] property by a[n] illegal and
issues are presented for our review. We affirm.
                                                                 unconstitutional manner.”The Jacksons attached no evidence
                                                                 to their response. On February 8, 2007, the trial court granted
                                                                 the motion, entered summary judgment against the Jacksons,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

and ordered that they take nothing as to all claims against         behalf of Mary. Moreover, Mary neither filed a brief nor
Neal. The trial court did not sever the claims against Neal.        adopted Phillip's appellate brief and reply briefs. With these
                                                                    limitations in mind, we proceed to the merits of the appeal.


     C. Order Granting Valdez's Motion to Dismiss
                                                                                          III. Venue Issues
 *2 Valdez filed a motion to dismiss and to assess costs.
SeeTEX. CIV. PRAC. & REM.CODE ANN. § 14.001-014                     By issues five, six, and seven, Phillip challenges the order
(Vernon 2002). Valdez argued that Phillip did not comply            transferring venue from DeWitt County to Nueces County.
with mandatory declaration requirements of section 14.004(a)        He asserts that venue was proper in DeWitt County and that
and failed to file a certified copy of his trust account            he was prejudiced when the case was transferred to Nueces
statement in accordance with section 14.006(f).See id. §§           County.
14.004(a); 14.006(f); see also id. § 14.003(a)(2), (b)(4).
Philip filed his response asserting that he had fulfilled all
chapter 14 requirements. On February 8, 2007, following a
                                                                           A. Applicable Law and Standard of Review
hearing where Mary appeared but Phillip did not, 2 the trial
court granted Valdez's motion and ordered that the case be          Section 15.002 of the civil practice and remedies code
dismissed without prejudice. The trial court denied Valdez's        provides as follows:
request to assess fees. This appeal ensued.
                                                                      (a) Except as otherwise provided by this subchapter or
                                                                         Subchapter B or C, all lawsuits shall be brought:

                 II. The Pro Se Appellants                            (1) in the county in which all or a substantial part of the
                                                                         events or omissions giving rise to the claim occurred;
As parties, Phillip and Mary may each appear in his or her
own person, and each may prosecute or defend his or her own            *3 (2) in the county of defendant's residence at the time
rights. SeeTEX.R. CIV. P. 7 (“Any party to a suit may appear            the cause of action accrued if defendant is a natural
and prosecute or defend his rights therein, either in person or         person;
by an attorney of the court.”). Because they are not attorneys,
however, they may not represent others. SeeTEX. GOV'T                 (3) in the county of the defendant's principal office in this
CODE ANN. § 81 .102(a) (Vernon 2005) (setting out state                  state, if the defendant is not a natural person; or
bar membership requirements); Jimison v. Mann, 957 S.W.2d
                                                                      (4) if Subdivisions (1), (2), or (3) do not apply, in the county
860, 861 (Tex.App.-Amarillo 1997, no writ) (per curiam)
                                                                         in which the plaintiff resided at the time of the accrual
(striking documents filed by a layperson having no authority
                                                                         of the cause of action.
to file them on behalf of another); see also Shafer v. Frost
Nat'l Bank, No. 14-06-00673-CV, 2008 Tex.App. LEXIS                   (b) For the convenience of the parties and witnesses and in
3676, ----10-14, 2008 WL 2130418 (Tex.App.-Houston [14th                 the interest of justice, a court may transfer an action ...
Dist.] May 22, 2008, no pet.)(mem.op.) (concluding that a pro            where the court finds:
se plaintiff unlicensed to practice law may not represent or
defend the rights of other pro se plaintiffs); Clary v. Cockrell,     (1) maintenance of the action in the county of suit would
No. 12-02-00319-CV, 2004 Tex.App. LEXIS 5983, *2, n.                     work an injustice to the movant considering the movant's
1, 2004 WL 1475103 (Tex.App.-Tyler June 30, 2004, no                     economic and personal hardship;
pet.)(mem. op. designated for publication) (providing that pro
                                                                      (2) the balance of interests of all the parties predominates in
se inmate Clary, who is not an attorney, may not represent
                                                                         favor of the action being brought in the other county; and
other named parties).
                                                                      (3) the transfer of the action would not work an injustice
Phillip is not an attorney and may not represent or defend the           to any other party.
rights of Mary. Therefore, we consider Phillip's arguments
only to the extent the arguments relate to his own claims
or rights. We do not address any arguments made on


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

                                                                    natural persons, resided in Nueces County at the time the
  (c) A court's ruling or decision to grant or deny a transfer      cause of action, if any, accrued, and (3) the principal offices
     under Subsection (b) is not grounds for appeal or              of all identified defendants were in Nueces County. SeeTEX.
     mandamus and is not reversible error.                          CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)-(3). Phillip
                                                                    did not specifically deny any of the sworn venue facts asserted
TEX. CIV. PRAC. & REM.CODE ANN. § 15.002 (Vernon
                                                                    by Valdez; therefore, Valdez's venue facts must be considered
2002).“A party who seeks to maintain venue of the action in
                                                                    true. TEX.R. CIV. P. 87(3). And, because subsections (1),
a particular county” in reliance on section 15.002, the general
                                                                    (2), and (3) apply to this case, subsection (4) does not, and
venue rule of the civil practice and remedies code, “has the
                                                                    Phillip's residence is not a factor in determining proper venue.
burden to make proof ... that venue is maintainable in the
                                                                    SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1)-
county of suit.”TEX.R. CIV. P. 87(2).“A party who seeks
                                                                    (4). Thus, the facts undisputably show proper venue in Nueces
to transfer venue of the action to another specified county”
                                                                    County.
under section 15.002 or under mandatory venue sections
15.011-15.017, “has the burden to make proof ... that venue
is maintainable in the county to which transfer is sought.”See
id.The trial court shall transfer venue to a county of proper                              2. Convenience
jurisdiction if the county in which the action is pending is not
a proper county. TEX. CIV. PRAC. & REM.CODE ANN. §                  In this case, Valdez also asserted convenience as a basis
15.063(1) (Vernon 2002).                                            for transfer. The trial court granted the transfer without
                                                                    specifying the grounds. “Generally, we must affirm such
In determining whether venue was proper, we must consider           general orders if any ground in the accompanying motion is
the entire record. Id.§ 15.064(b); Wilson v. Tex. Parks &           meritorious.”Garza v. Garcia, 137 S.W.3d 36, 37 (Tex.2004).
Wildlife Dep't, 886 S.W.2d 259, 260-62 (Tex.1994). If there         When a motion asserts convenience as well as other grounds,
is any probative evidence in the record demonstrating venue         the statute precludes reversal on convenience grounds.
was proper in the county where judgment was rendered, we            SeeTEX. CIV. PRAC. & REM.CODE ANN. § 15.002(c).
must uphold the trial court's ruling. See Bonham State Bank         Because the motion here asserted convenience as one ground,
v. Beadle, 907 S.W.2d 465, 471 (Tex.1995); Morris v. Tex.           and the statute precludes reversal of any ruling made on
Parks & Wildlife Dep't, 226 S.W.3d 720, 723 (Tex.App.-              convenience grounds, we must affirm the transfer. Garza,
Corpus Christi 2007, no pet.). Furthermore, we take as true         137 S.W.3d at 39 (“We acknowledge the court of appeals'
[a]ll venue facts, when properly pleaded, ... unless specifically   concern that the usual presumption in favor of nonspecific
denied by the adverse party.” TEX.R. CIV. P. 87(3).                 orders will make many venue orders ‘immune from review.’
                                                                    But in transfer orders based on convenience, that appears to
                                                                    have been precisely the Legislature's intent.”).

                          B. Analysis

                                                                                        3. Mandatory Venue
                       1. Proper Venue
                                                                    Phillip argues that section 15.019, a mandatory venue section
Valdez argues, and we agree, that Phillip pleaded no facts          for inmate litigation, applies. SeeTEX. CIV. PRAC. &
to support venue in DeWitt County under the general venue           REM.CODE ANN. § 15.019 (Vernon 2002) (“[A]n action
statute and, thus, did not meet his burden of proof that venue      that accrued while the plaintiff was housed in a facility
was maintainable in the county of suit. See id. 87(2)(a).           operated by or under contract with the Texas Department
Valdez did, however, meet his burden of proving that venue          of Criminal Justice shall be brought in a county in which
is maintainable in Nueces County, Texas, the county to which        the facility is located.”). This argument, however, was not
transfer is sought. See id.                                         raised in the trial court and is, therefore, waived. See In
                                                                    the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008).
 *4 Valdez set out in his motion to transfer that venue is          Moreover, this provision does not apply to Phillip. Section
proper in Nueces County because (1) all or a substantial            15.019 provides for venue in the county of incarceration if
part of the events or omissions giving rise to Phillip's claim      the cause of action accrued while the inmate was incarcerated
occurred in Nueces County, (2) defendants Neal and Valdez,          in that county. SeeTEX. CIV. PRAC. & REM.CODE ANN.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

§ 15.019. The facts show that Phillip, although an inmate in       without reference to any guiding rules or principles; whether
DeWitt County when the lawsuit was filed, was not an inmate        the act was arbitrary or unreasonable.Downer v. Aquamarine
in DeWitt County at the time the cause of action allegedly         Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
arose. Thus, this argument fails.
                                                                   “It is well-established that litigants cannot be denied access
                                                                   to the courts simply because they are inmates.”In the Interest
                                                                   of Z.L.T., 124 S.W.3d at 165 (citing Hudson v. Palmer, 468
                4. Fair and Impartial Trial
                                                                   U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)).
Phillip also argues that transfer of the case to Nueces County     However, an inmate does not have an absolute right to appear
prejudiced him because Valdez is the “most powerful man            in person in every court proceeding. Id.;Pedraza, 960 S.W.2d
in Nueces County, Texas” and he “would not receive a fair          at 342. “[T]he inmate's right of access to the courts must be
proceeding.”Phillip and Mary each filed affidavits stating that    weighed against the protection of our correctional system's
a transfer of venue to Nueces County would prejudice both          integrity.”Z.L.T., 124 S.W.3d at 165,see Pedraza, 960 S.W.2d
plaintiffs and that there [was] a combination against [them]       at 342. The supreme court identified the following factors that
instigated by influntial [sic] persons by reason of which [they    the trial court should consider when deciding whether to grant
could not] expect a fair and impartial trial ... in ‘Nueces        a request for a bench warrant:
County.’ ” The assertions made by Phillip track the language
                                                                                the cost and inconvenience of
of Texas Rule of Civil Procedure 257. SeeTEX.R. CIV. P.
                                                                                transporting the prisoner to the
257. Phillip's use of this rule, however, is misplaced. Rule
                                                                                courtroom; the security risk the
257 provides that the inability to obtain a fair and impartial
                                                                                prisoner presents to the court and
trial of a civil case may be grounds for a transfer of venue.
                                                                                public; whether the prisoner's claims
Id. Phillip uses the rule as a defensive measure to support the
                                                                                are substantial; whether the matter's
maintenance of his action in DeWitt County. Even were we to
                                                                                resolution can reasonably be delayed
consider Phillip's argument, a motion based on rule 257 must
                                                                                until the prisoner's release; whether the
be supported by competent affidavits of the party seeking the
                                                                                prisoner can and will offer admissible,
transfer and three credible residents of the county where the
                                                                                noncumulative testimony that, cannot
suit is pending. See id.;Acker v. Denton Publ'g, 937 S.W.2d
                                                                                be effectively presented by deposition,
111, 118 (Tex.App.-Fort Worth 1996, no writ). Phillip did
                                                                                telephone, or some other means;
not satisfy this requirement. Therefore, this argument is also
                                                                                whether the prisoner's presence is
without merit. 3 We overrule Phillip's venue issues five, six,                  important in judging his demeanor and
and seven.                                                                      credibility; whether the trial is to the
                                                                                court or a jury; and the prisoner's
                                                                                probability of success on the merits.
                       5. Due Process
                                                                   Z.L.T., 124 S.W.3d at 165;see Pedraza, 960 S.W.2d at 342.
 *5 By his third issue, Phillip generally argues that he was       The trial court has no responsibility to independently inquire
“denied due process of law in the first hearing by the denial      into the applicability of the factors; rather, the inmate has the
[of] the opportunity to be heard.”By the language in his brief,    burden to establish his right to relief. See Z.L.T., 124 S.W.3d
Phillip appears to be arguing that he was denied due process       at 166. If the inmate fails to identify with sufficient specificity
when the trial court did not allow him the opportunity to          the grounds for the ruling he seeks under the factors identified
present evidence at a hearing on Valdez's motion to transfer       above, the trial court does not abuse its discretion in denying
venue after Phillip requested a bench warrant.                     his request. See id.

We review a trial court's denial of a bench warrant motion for     In his motion for a bench warrant, Jackson requested the
an abuse of discretion. See In the Interest of Z.L.T., J.K.H.T.,   following:
and Z.N.T., 124 S.W.3d 163, 165 (Tex.2003); Pedraza v.
                                                                                Now comes, Phillip Jackson #
Crossroads Security Sys., 960 S.W.2d 339, 342 (Tex.App.-
                                                                                1189921, pro se, humbly request the
Corpus Christi 1997, no pet.). To determine whether a trial
                                                                                Honorable Court to issue a order
court abused its discretion, we must decide whether it acted


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

             from the bench, for a bench warrant                   review. 5 We overrule Phillip's reply issues regarding the
             for Phillip Jackson, that I may be                    summary judgment granted in favor of Neal.
             present at the hearing on November
             16, 2006 and said order to the sheriff
             of DeWitt County to deliver Phillip
             Jackson to the Honorable Court for                                    V. Motion to Dismiss Issues
             said hearing. Thank you! Plaintiff['s]
             address, Stevenson Unit, 1525 FM                                    A. Rulings on Phillip's Motions
             766, Cuero, Texas 77954.
                                                                   By his first two issues, Phillip complains that he was denied
 *6 On November 16, 2006, the trial court granted Valdez's         due process when the trial court dismissed his claims before
motion to transfer the case to Nueces County without issuing       ruling on two motions-Phillip's motion to stay the proceedings
a bench warrant, thereby impliedly denying Phillip's request.      and Phillip's motion to proceed in forma pauperis-while his
See Z.L.T., 124 S.W.3d at 165. Phillip's bench warrant motion
                                                                   appeal of the order transferring venue was pending. 6 We
contains no information by which the trial court could assess
                                                                   disagree.
the necessity of his appearance at a venue hearing. The
motion contains no basis or argument for granting the motion.
Pedraza, 960 S.W.2d at 342. It does not reference any of the
factors identified in Z.L.T. See In the Interest of Z.L.T., 124                          1. Motion to Stay
S.W.3d at 165-66. As in Z.L.T., the only information in the
                                                                   An appeal from an interlocutory order does not stay the
motion pertinent to Phillip's request is that he is incarcerated
                                                                   commencement of a trial or other proceedings in the trial
in Cuero, Texas, over 100 miles from Nueces County. See
                                                                   court, except in limited circumstances. SeeTEX. CIV. PRAC.
id. at 166 (noting that the only relevant information in the
                                                                   & REM.CODE ANN. § 51.014 (Vernon 2008). None of the
bench warrant motion was that the prisoner was incarcerated
                                                                   specific circumstances apply in this case. See id.Additionally,
“more than 200 miles from the trial court”). Because Phillip
                                                                   rule 29 .5 of the Texas Rules of Appellate Procedure sets
failed to meet his burden to prove his entitlement to a bench
                                                                   out that the trial court retains jurisdiction during an appeal
warrant, we cannot say the trial court abused its discretion in
                                                                   of an interlocutory order and, unless prohibited by statute,
implicitly denying Phillip's request for a bench warrant. See
                                                                   may make any rulings or orders that do not interfere with
id.We overrule Phillip's third issue.
                                                                   temporary orders issued by the court of appeals or with the
                                                                   appellate court's jurisdiction. TEX.R.APP. P. 29.5.

              IV. Summary Judgment Issues                           *7 In this case, there are no statutory restrictions that apply
                                                                   to the trial court making further rulings, seeTEX. CIV. PRAC.
Phillip does not challenge the summary judgment granted
                                                                   & REM.CODE ANN. § 51.014; the trial court's rulings
in favor of Neal in his original brief. In his reply brief,
                                                                   did not interfere with temporary orders because none were
Phillip, for the first time, challenges the propriety of
                                                                   issued; and, the rulings did not interfere with our jurisdiction
the summary judgment on due process grounds, after
                                                                   because we concluded that we had none. See Jackson, No.
Neal raised facts related to these issues in his responsive
                                                                   13-06-700-CR, 2007 Tex.App. LEXIS 1786, at *2, 2007 WL
brief. 4 SeeTEX.R.APP. P. 38.3.                                    687289.Therefore, the trial court did not deny Phillip due
                                                                   process when it granted Valdez's motion to dismiss without
Rule 38.3 states that the “appellant may file a reply brief        ruling on Phillip's motion to stay.
addressing any matter in the appellee's brief.”Id. However,
an appellant may not use a reply brief to raise new issues.
Lopez v. Montemayor, 131 S.W.3d 54, 61 (Tex.App.-San
                                                                            2. Motion to Proceed in Forma Pauperis
Antonio 2003, pet. denied); see Anderson Producing, Inc. v.
Koch Oil Co., 929 S.W.2d 416, 424 (Tex.1996) (declining            Again, Phillip has made no concise argument with citation to
to consider issue first raised in reply brief). Because Phillip    authorities and to the record in support of his contention that
failed to raise his due process challenges in his initial brief,   the trial court denied him due process when it failed to rule
we conclude that he has waived these complaints for appellate      on his motion for pauper status before it dismissed his claim


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             5
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

and while the venue appeal was pending. SeeTEX.R.APP.
P. 38.1(i). Indeed, it is his claim of poverty, not the ruling
he seeks on his motion, that mandates the requirements of                                 V. Remaining Issues
chapter 14. SeeTEX. CIV. PRAC. & REM.CODE ANN.
§ 14.002(a). The trial court's dismissal was not based on            Phillip presents two additional issues for our review. In issue
Phillip's failure or his inability to pay fees. It was based on      four, Phillip claims that he has suffered a monetary and
Phillip's non-compliance with requirements of chapter 14. We         property loss by appellees' illegal forfeiture action or seizure
overrule Phillip's first and second issues.                          without any violation of chapter 59 of the Texas Code of
                                                                     Criminal Procedure or federal law. Phillip does not, however,
                                                                     develop his arguments regarding this issue and does not
                                                                     provide this Court with appropriate citations to authorities and
                B. Chapter 14 Requirements                           to the record. SeeTEX.R.APP. P. 38.1(i). Because this issue
In his responsive brief, Valdez asserts that appellant's claim       is inadequately briefed, we overrule Phillip's fourth issue.
is frivolous because Phillip failed to sufficiently set forth the
operative facts regarding a previous filing and failed to submit      *8 By his eighth issue, Phillip asks, “Did the Stevenson
a certified copy of his trust account. SeeTEX. CIV. PRAC.            Unit mailroom enter into a conspiracy with the appellee ...
& REM.CODE ANN. §§ 14.004(a); 14.006(f). By a reply                  by the delayed notice date on November 19, 2007[sic] and
                                                                     was not give [sic] to the appellant until November 28, 2007.
issue, Phillip claims, for the first time, that he satisfied the
                                                                     [sic]” Phillip brings this argument for the first time on appeal;
requirements of chapter 14 of the Texas Civil Practice and
                                                                     therefore, his eighth issue is waived. See B.L.D., 113 S.W.2d
Remedies Code, and, thus, the trial court abused its discretion
                                                                     at 350-52.
in dismissing his claim. SeeTEX.R.APP. P. 38.3. However,
as set out above, the rules of appellate procedure do not allow
an appellant to include in his reply brief a new issue that
responds to a matter that was raised in the appellee's brief but                             VI. Conclusion
that was not raised in the appellant's original brief. Id.;Lopez,
131 S.W.3d at 61;see Anderson Producing, 929 S.W.2d at               We affirm.
424. Because Phillip failed to raise this chapter 14 issue in his
initial brief, he has waived these complaints for our review.
                                                                     All Citations
We overrule Phillip's reply issues regarding the trial court's
granting of the motion to dismiss.                                   Not Reported in S.W.3d, 2009 WL 140507


Footnotes
1       The Jacksons also identify the City of Corpus Christi, John Doe, and Jane Doe as appellees. However, we find nowhere
        in the record that they were served with citation. Only Valdez and Neal answered and participated in the proceedings
        below. Therefore, based on our review of the record, the City and John and Jane Doe were never parties to the lawsuit
        and, therefore, cannot be appellees in this appeal.
2       Mary's appearance at the hearing is not supported by the record but is undisputed by Valdez. No reporter's record of the
        hearing has been filed in this appeal. From our review of the appellate record, the hearing, if any, on February 7, 2007,
        was for the purpose of presenting Valdez's motion to dismiss. It is not clear whether Neal's motion for summary judgment
        was argued at the hearing. The orders granting the two motions were both signed on February 8, 2007.
3       Phillip also argues that rule 259 applies. SeeTEX.R. CIV. P. 259 (providing that if a motion under rule 257 is granted, the
        cause shall be removed, if a county of proper venue cannot be found, from a district court to any county in the same or an
        adjoining district or to any district where an impartial trial can be had). This argument was not raised in the trial court and
        is, therefore, waived. See In the Interest of B.L.D., 113 S.W.2d 340, 350-52 (Tex.2008). Even had Phillip not waived the
        argument, rule 259 applies only when a rule 257 motion is granted. In this case, the trial court did not grant such a motion.
4       Phillip complains of the trial court's alleged failure to bench warrant him for the February 2007 hearing. He also asserts
        that he did not receive notice of the granting of the summary judgment.
5       We also note that Phillip provides no further argument with record cites and citation to authority to support these
        contentions. SeeTEX.R.APP. P. 38.1(i) (providing that this court will only consider contentions that are supported by clear



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 6
Jackson v. Neal, Not Reported in S.W.3d (2009)
2009 WL 140507

      and concise arguments with appropriate citations to authorities and the record); Moser v. Roberts, 185 S.W.3d 912, 916
      (Tex.App.-Corpus Christi 2006, no pet.). Therefore, Phillip has waived error because the issues are inadequately briefed.
      In addition, we have not found a motion for a bench warrant requesting Phillip's appearance at this February hearing or
      facts regarding notice of the granting of the summary judgment in the appellate record.
6     Phillip alleges that the trial court agreed, in open court, not to rule on Valdez's motion to dismiss until the appeal of
      the venue order was concluded; however, he provides no record support for this assertion. SeeTEX.R.APP. P. 38.1(i).
      Therefore, we will not address arguments related to the trial court's alleged agreement to stay the proceedings in this case.


End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               7
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005


                                                                   Andrew L. Kerr, Cynthia E. Ellis Rosen, John Alex
                     438 S.W.3d 556                                Huddleston, Strasburger & Price LLP, San Antonio, TX, for
                 Supreme Court of Texas.                           Petitioner.
            Gary Wayne JASTER, Petitioner,                         Kemp W. Gorthey, Attorney at Law, Austin, TX, for
                          v.                                       Respondent Austin Design Group.
         COMET II CONSTRUCTION, INC., Joe
         H. Schneider, Laura H. Schneider, and                     Henderson L. Buford III, Buford & Associates, Austin, TX,
          Austin Design Group, Respondents.                        for Respondent Comet II Construction, Inc.

                                                                   Opinion
               No. 12–0804. | Argued Oct.
            9, 2013. | Decided July 3, 2014.                       Justice BOYD announced the Court's disposition and
                                                                   delivered a plurality opinion, in which Justice JOHNSON,
Synopsis
                                                                   Justice WILLETT, and Justice DEVINE joined.
Background: Homeowner brought action against contractor
for damages arising from allegedly improper design and             Chapter 150 of the Texas Civil Practice and Remedies
construction of house foundation. Contractor filed third-          Code requires “the plaintiff” in “any action or arbitration
party indemnity complaint against architectural designer and       proceeding for *559 damages arising out of the provision of
licensed professional engineer, and architectural designer         professional services by a licensed or registered professional”
cross-claimed against contractor and engineer for indemnity.       architect, engineer, land surveyor, or landscape engineer
The 274th Judicial District Court, Hays County, 2010 WL            to file a supporting expert affidavit “with the complaint.”
10092095, William Henry, J., denied engineer's motion to           The issue in this case is whether this requirement applies
dismiss third-party and cross claims for deficient filing.         to a defendant or third-party defendant who files a third-
Engineer appealed. The Austin Court of Appeals, 382 S.W.3d         party claim or cross-claim against a licensed or registered
554, affirmed. Engineer filed petition for review, which was       professional. Concluding that cross-claimants and third-party
granted.                                                           plaintiffs are not “the plaintiff” in an “action or arbitration
                                                                   proceeding,” we hold that the statute's expert affidavit
                                                                   requirement does not apply to them.
[Holding:] On an issue of apparent first impression, the
Supreme Court, Boyd, J., held that certificate-of-merit
requirement did not apply to third-party plaintiffs and cross-                                    I.
claimants.

                                                                                            Background
Affirmed.
                                                                   Mahmoud Dawoud purchased a home from Comet II
Willett, J., filed concurring opinion in which Devine, J, joined   Construction, Inc. About ten years later, Dawoud sued
and Lehrmann, J., joined in part.                                  Comet 1 for negligence, negligent misrepresentations, fraud,
                                                                   deceptive trade practices, and breach of contract, alleging
Hecht, C.J., filed dissenting opinion in which Green and           that Comet defectively designed and constructed the home's
Guzman, joined and Brown, J., joined in part.                      foundation. Comet denied any liability and asserted third-
                                                                   party claims against Austin Design Group, from whom Comet
                                                                   had purchased the foundation plans, and against Gary Wayne
Attorneys and Law Firms                                            Jaster, the licensed professional engineer who had prepared
                                                                   the plans. Comet sought contribution and indemnity from the
 *558 David Kenneth Sergi, David K. Sergi & Associates,
                                                                   third-party defendants, alleging that they “are or may be liable
P.C., San Marcos, TX, for Other interested party.
                                                                   to [Comet] for all or part of [Mahmoud's] complaint.” Austin
                                                                   Design Group filed a counterclaim against Comet and a cross-
                                                                   claim against Jaster, seeking contribution and indemnity and



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

asserting that, “[t]o the extent there is any defect in the                        act, error, or omission claimed to exist
foundation, whether by design or construction, it is the fault of                  and the factual basis for each such
[Jaster or Comet] and not the fault of Austin Design Group.”                       claim.

Jaster filed a motion to dismiss Comet's third-party claim and        Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003
Austin Design Group's cross-claim, arguing that they were             Tex. Gen. Laws 847, 896–97, amended by Act of May 12,
each “the plaintiff” as to those claims, that he was a licensed       2005, 79th Leg., R.S., ch. 189, § 4, 2005 Tex. Gen. Laws
professional engineer, and that they had failed to file an expert     348, 348 and Act of May 27, 2005, 79th Leg., R.S., ch. 208,
affidavit (which the statute refers to as a “certificate of merit”)   § 2, 2005 Tex. Gen. Laws 369, 370 and Act of May 27,
as chapter 150 requires. In response, Comet filed an amended          2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws
                                                                      1991, 1992 (current version codified at TEX. CIV. PRAC.
third-party petition, this time attaching a certificate of merit. 2
Jaster then filed an amended motion to dismiss, arguing that          & REM.CODE § 150.002). 4 “The plaintiff's failure to file
Comet did not comply with the statute because it did not file         the affidavit in accordance with this section shall result in
the certificate of merit with the original third-party petition       dismissal of the complaint against the defendant” and “[t]his
and thus did not file it “with the complaint.”                        dismissal may be with prejudice.” Id. § 150.002(e). 5

The trial court denied Jaster's motion to dismiss, and Jaster         The parties do not dispute that Jaster is a licensed professional
                                 3
filed this interlocutory appeal. With one justice dissenting,         engineer and thus a “licensed or registered professional,” 6 or
the court of appeals affirmed, concluding that chapter 150            that the claims that Comet and Austin Design Group assert
does not require third-party plaintiffs or cross-claimants to         against him arise out of the provision of professional services.
file a certificate of merit. 382 S.W.3d 554. Jaster filed a           Neither Comet nor Austin Design Group filed a certificate of
petition for review, which we granted.                                merit when they originally filed their claims against him. The
                                                                      only issue in this appeal is whether the statute required them
                                                                      to do so.

                                II.
                                                                      Jaster argues: (1) for purposes of section 150.002, “there is
                                                                      no meaningful distinction” between an original “plaintiff”
  “The Plaintiff” in an “Action” Under Section 150.002                and a third-party plaintiff or a cross-claimant because they
                                                                      all assert affirmative claims for relief and are subject to
 [1] Jaster contends that section 150.002 of the Texas Civil          the same pleading requirements; (2) third-party claims and
Practice and Remedies Code requires dismissal of the claims           cross-claims are “actions,” and thus must comply with the
that Comet and Austin Design *560 Group asserted against              statute's requirements for “any action”; and (3) not applying
him in this case. The 2005 version of this section, which             the requirement to third-party plaintiffs and cross-claimants
governs this action, provided:                                        thwarts “the statute's purpose to protect licensed professionals
                                                                      from unmeritorious or frivolous claims.” In response, Comet
             In any action or arbitration proceeding
                                                                      and Austin Design Group contend: (1) because the statute
             for damages arising out of the
                                                                      uses the word “plaintiff” rather than the more inclusive
             provision of professional services by
                                                                      term “claimant,” the certificate-of-merit requirement *561
             a licensed or registered professional,
                                                                      applies only to a party that initiates a lawsuit; (2) requiring
             the plaintiff shall be required to
                                                                      a defendant who denies the plaintiff's allegations to file
             file with the complaint an affidavit
                                                                      a certificate of merit that supports the plaintiff's claims
             of a third-party licensed architect,
                                                                      would be “absurd,” “unfair,” and “unreasonable”; and (3) if
             registered professional land surveyor,
                                                                      applying the requirement only to “the plaintiff” undermines
             or licensed professional engineer
                                                                      the statute's purpose, the Legislature should address that
             competent to testify, holding the same
             professional license as, and practicing                  problem, not the courts. 7 After briefly reviewing the courts
             in the same area of practice as the                      of appeals' decisions addressing this issue, we consider the
             defendant, which affidavit shall set                     language of the statute and its context, and conclude that they
             forth specifically at least one negligent                compel us to agree with Comet and Austin Design Group.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 2
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

                                                                     different from original plaintiffs. 382 S.W.3d at 559–60.
A. Judicial Constructions of Section 150.002                         The majority observed that “the statute does not specifically
Three Texas courts of appeals have addressed section                 address defendants filing third-party complaints and cross-
150.002's certificate-of-merit requirement in the context of         claims” and suggested that “there are multiple options of
third-party plaintiffs or cross-claimants. 8 First, in DLB           how the certificate-of-merit requirement could be applied
Architects, P.C. v. Weaver, the Dallas Court of Appeals              to them,” depending on whether the claims are original
applied the requirement to a defendant who asserted third-           to the defendant or derived from the plaintiff's claims and
party claims for contribution and indemnity against out-             whether they assert the claims against new parties or parties
of-state architects. 305 S.W.3d 407, 411 (Tex.App.-Dallas            already in the suit. Id. at 560. After considering the potential
2010, pet. denied). The third-party plaintiff argued that the        “unintended consequences of an expansive definition of
requirement applies only to architects licensed in Texas, and        ‘plaintiff,’ ” id. at 561, the majority noted that the statute
the court rejected that argument. Id. at 410–11. But neither         uses the word “plaintiff” instead of “claimant” and does
party argued that the requirement did not apply to third-            so without defining it to include third-party plaintiffs and
party plaintiffs, and the court applied the requirement without      cross-claimants. Id. at 561–62. Considering the “difficulties
addressing that issue. Id.                                           in judicially imposing ... a broader definition of ‘the plaintiff,’
                                                                     ” the majority decided to “resist the urge to judicially
Next, the Fort Worth Court of Appeals became the first to            create a solution to the statute's failure to address third-party
expressly address the issue in CTL/Thompson Texas, LLC               complaints and cross-claims,” and held that the statute “does
v. Morrison Homes, 337 S.W.3d 437 (Tex.App.-Fort Worth               not require a certificate of merit from a defendant who files a
2011, pet. denied). In that case, a homebuilder sued a land          third-party complaint or cross-claim.” Id. at 562.
developer and several engineers over a real estate transaction
and filed a certificate of merit with the original petition.         The dissenting justice in the Austin Court of Appeals
Id. at 439. The land developer brought cross-claims against          concluded that requiring plaintiffs who sue certain
the engineers, but instead of filing a certificate of merit, he      professionals to file a certificate of merit but not requiring
incorporated the homebuilder's certificate of merit into his         defendants who sue such professionals to do so is “an
cross-petition by reference. Id. The engineers argued that the       absurd result.” Id. at 565 (Henson, J., dissenting). In her
statute required the developer to file his own certificate of        view, the majority's construction undermines the statute's
merit to support the cross-claims. Id. at 440. The court of          purpose “to provide a method by which courts can quickly
appeals held that the statute does not apply to a defendant          dismiss meritless claims” and ignores the reality that, from
who merely files cross-claims against another defendant. Id.         the licensed or registered professional's perspective, “third-
at 445–46. The court rejected the engineer's reliance on DLB         party plaintiffs and cross-claimants are certainly ‘plaintiffs'
Architects on the ground that it involved a defendant who            with regard to the third-party claims and cross-claims[.]” Id.
filed third-party claims against a new third-party defendant,        at 564–65.
rather than cross-claims against a defendant who was already
in the case. Id. The court reasoned that there is no need to
require a cross-claimant to file a certificate of merit because      B. The Language of the Statute
“the plaintiff will have already filed [one],” or “if not, the        [2]    [3]     [4]     [5]   [6] We resolve the issue in this
plaintiff's claims are subject to dismissal.” Id. at 445. But        case by looking to the language of the statute, which we
because the plaintiff will not have already filed a certificate of   construe de novo. Nathan v. Whittington, 408 S.W.3d 870,
merit addressing the conduct of a new third-party defendant,         872 (Tex.2013). We must enforce the statute “as written”
the court reasoned that a third-party plaintiff should be            and “refrain from rewriting text that lawmakers chose.”
required to do so, even if a cross-claimant is not. Id. at 445–      Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443
46.                                                                  (Tex.2009). We limit our analysis to the words of the statute
                                                                     and apply the plain meaning of those words “unless a different
Finally, in the case before us today, the Austin Court of            meaning is apparent from the context or the plain meaning
Appeals held that the statute does not require third-party           leads to absurd or nonsensical results.” Molinet v. Kimbrell,
plaintiffs or cross-claimants to file a certificate of merit. The    356 S.W.3d 407, 411 (Tex.2011). While we must consider
court identified many respects in which third-party plaintiffs       the specific statutory language at issue, we must do so while
and cross- *562 claimants are both similar to and yet                looking to the statute as a whole, rather than as “isolated
                                                                     provisions.” TGS–NOPEC Geophysical Co. v. Combs, 340


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

S.W.3d 432, 439 (Tex.2011). We “endeavor to read the             claim or cause of action that any party may assert, including
statute contextually, giving effect to every word, clause, and   an original plaintiff's claims, third-party claims, and cross-
sentence.” In re Office of Att'y Gen., 422 S.W.3d 623, 629       claims. This, however, is not the common, ordinary meaning
(Tex.2013). We thus begin our analysis with the statute's        of “action.”
words and then consider the apparent meaning of those words
within their context. 9                                           [9] [10] [11] [12] The common meaning of the term
                                                                 “action” refers to an entire lawsuit or cause or proceeding,
                                                                 not to discrete *564 “claims” or “causes of action”
1. The Words of the Statute                                      asserted within a suit, cause, or proceeding. BLACK'S LAW
 [7]    [8] Section 150.002 requires “the plaintiff” in “any DICTIONARY at 28 (defining “action” as “[a] civil or
action or arbitration proceeding” *563 to file a certificate     criminal judicial proceeding”). “The term ‘action’ is generally
of merit. Chapter 150 does not define the terms “plaintiff”      synonymous with ‘suit,’ which is a demand of one's rights in
or “action,” so we must give them their common, ordinary         court.” Thomas v. Oldham, 895 S.W.2d 352, 356 (Tex.1995);
meaning unless the statute clearly indicates a different result. see also In re Marriage of Combs, 958 S.W.2d 848, 850
See Molinet, 356 S.W.3d at 411. That is not to say that          (Tex.App.-Amarillo 1997, no pet.) (holding that an “action” is
we must (or may only) give undefined words their only            “a demand for one's legal right and has been held synonymous
meaning, for words can have more than one meaning. The           with ‘suit’ ”). A suit, in turn, is “any proceeding in a court
dissent asserts that, “[w]hen a word is used sometimes to        of justice by which an individual pursues that remedy in a
mean one thing and sometimes another, neither is ‘plain,’        court of justice which the law affords him.” H.H. Watson Co.
‘common,’ or ‘ordinary’ to the exclusion of the other.” Post     v. Cobb Grain Co., 292 S.W. 174, 176 (Tex.1927) (citing
at 578. We disagree. When a statute uses a word that it does     Weston v. City Council of Charleston, 27 U.S. 449, 464,
not define, our task is to determine and apply the word's        2 Pet. 449, 7 L.Ed. 481 (1829)). Although the word “suit”
common, ordinary meaning. The fact that the word may             can be “more general in its comprehension than the word
sometimes be used to convey a different meaning is the very      ‘action,’ ” both terms refer to a judicial proceeding in which
reason why we look for its common, ordinary meaning. To          parties assert claims for relief. Id. Thus, under the common
determine its common, ordinary meaning, we look to a wide        definition, “[a]n action is a judicial proceeding, either in
variety of sources, including dictionary definitions, treatises  law or in equity, to obtain certain relief at the hands of the
and commentaries, our own prior constructions of the word        court.” Elmo v. James, 282 S.W. 835, 839 (Tex.Civ.App.-
in other contexts, the use and definitions of the word in other  Fort Worth 1926, writ dism'd w.o.j.). Historically, “action”
statutes and ordinances, and the use of the words in our rules   referred to a judicial proceeding in a court of law, while “suit”
                             10                                  referred to a proceeding in a court of equity. BLACK'S LAW
of evidence and procedure.
                                                                 DICTIONARY at 29.
We begin by reviewing dictionary definitions of the words
“plaintiff” and “action.” See Epps v. Fowler, 351 S.W.3d          [13]     [14] A “cause of action,” by contrast, “has been
862, 873 (Tex.2011) (Hecht, J., dissenting) (“The place to       defined ‘as a fact or facts entitling one to institute and
look for the ordinary meaning of words is ... a dictionary.”).   maintain an action, which must be alleged and proved in order
Dictionaries consistently define a “plaintiff” as a party or     to obtain relief.’ ” A.H. Belo Corp. v. Blanton, 133 Tex. 391,
person who brings or files a “civil suit” or “legal action.”     129 S.W.2d 619, 621 (1939) (quoting 1 TEX. JUR. p. 61
See, e.g., BLACK'S LAW DICTIONARY 1171 (7th ed.1999)             sec. 15). As we recently noted, this is “the generally accepted
(defining “plaintiff” as “[t]he party who brings a civil suit    meaning” of the term “cause of action.” Loaisiga v. Cerda,
in a court of law”); Garner, Bryan, A DICTIONARY OF              379 S.W.3d 248, 255 (Tex.2012) (quoting In re Jorden, 249
MODERN LEGAL USAGE 665 (2nd ed.1995) (defining                   S.W.3d 416, 421 (Tex.2008)). Thus, a “cause of action”
“plaintiff” as “the party who brings suit in a court of law”);   and an “action” are not synonymous; rather, the “cause of
MERRIAM–WEBSTER'S COLLEGIATE DICTIONARY                          action” is the right to relief that entitles a person to maintain
888 (10th ed.1993) (defining “plaintiff” as “a person who        “an action.” Id. “The right to maintain an action depends
brings a legal action”). Thus, both the statute and the          upon the existence of a cause of action, which involves the
dictionary definitions recognize a direct relationship between   combination of a right on the part of the plaintiff and a
the words “plaintiff” and “action.” Jaster contends that “any    violation of such right by the defendant.” Bell v. Moores, 832
action,” as used in section 150.002, includes each separate



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

S.W.2d 749, 752 (Tex.App.-Houston [14th Dist.] 1992, writ             to compulsory claims relating to the cross-claim) (emphasis
        11                                                            added); TEX.R. CIV. P. 85 (providing that a defendant's
denied).
                                                                      original answer “may present a cross-action, which to that
 [15] [16] A “cause of action” is thus similar to a “claim,” extent will place defendant in the attitude of a plaintiff)
in that they both refer to a legal right that a party asserts         (emphasis added). But that does not mean that the law treats
in the suit that constitutes the action. See Torch Energy             them similarly in all respects. We thus conclude that, under
Advisors Inc. v. Plains Exploration & Prod. Co., 409 S.W.3d           the common, ordinary meaning of the terms, Comet and
46, 56 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (noting           Austin Design Group are not “the plaintiffs” in this “action,”
that the ordinary meaning of “claim” is “the assertion of             because they are not the parties who initiated the suit.
an existing right; any right to payment or to an equitable
remedy,” and “the aggregate of operative facts giving rise to
                                                                      2. The Context of the Words
a right enforceable by a court”). Thus, a “cause of action may
                                                                      Having identified the common meaning of the terms
exist before a suit is instituted.” Magill, 409 S.W.3d at 679.
                                                                      “plaintiff” and “action,” we must also consider the context
But for there to be a “suit” or “action,” it is “essential that
                                                                      in which those words appear within section 150.002 and the
it rest in a court, with the power to hear it. Without such a
forum, it is not ‘a suit,’ since it lacks that which is as necessary  statute as a whole. 13 The dissent *566 considers it obvious
to make it a suit as the petition itself.” United *565 Prod.          that “a third-party plaintiff is a plaintiff.” Post at 576. We
Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327, 330 (1941)              agree that the terms “plaintiff” and “action” may sometimes
(quoting Pecos & N.T. Ry. Co. v. Rayzor, 106 Tex. 544, 172            be used more broadly than their common meanings would
S.W. 1103, 1104 (1915)). Recognizing these distinctions, this         support. 14 To conclude that they are used that way here,
Court has used the terms “case,” “cause,” “suit,” “lawsuit,”          however, either a statutory definition or the context of the
“action,” and “proceeding” interchangeably, while using the           language must clearly demonstrate that they are. So we
terms “claim,” “cause of action,” and “chose in action” to            must consider the entire statute in this case, to determine
refer to the facts giving rise to a right that is enforceable in that whether something other than the words' common meaning
proceeding. See, e.g., State Farm Fire & Cas. Co. v. Gandy,           “is apparent from the context” here. Molinet, 356 S.W.3d at
925 S.W.2d 696, 698–708 (Tex.1996).                                   411. Doing so, we conclude that the context does not support a
                                                                      different meaning but instead confirms the common meanings
Consistent with the common, ordinary usage of these terms,            we have identified.
the Dallas Court of Appeals has expressly concluded that
“the term action in section 10.01 [of the Civil Practice               [17] We begin our review of the context by recognizing
and Remedies Code] means ‘suit,’ ” not “cause of action.”             that the statute requires the plaintiff to file a certificate
Bradley v. Etessam, 703 S.W.2d 237, 241 (Tex.App.-Dallas              of merit in “any action or arbitration proceeding.” TEX.
1985, writ ref'd n.r.e.) (emphasis in original). Similarly, the       CIV. PRAC. & REM.CODE § 150.002(a) (emphasis added).
Amarillo Court of Appeals has concluded that a counter-claim          By using the terms “action” and “arbitration proceeding”
is not an “action” as the Family Code uses that term. Combs,          together with the conjunction “or,” the statute treats the
958 S.W.2d at 850.     12                                             two terms as having a similar meaning. The meaning of
                                                                      individual words “may be ascertained by reference to words
Thus, according to the terms' common, ordinary meanings,              associated with them in the statute; and ... where two or
section 150.002 requires “the plaintiff” to file a certificate        more words of analogous meaning are employed together
of merit in “any [lawsuit] or arbitration proceeding” against         in a statute, they are understood to be used in their cognate
a licensed professional, and “the plaintiff” is a party who           sense, to express the same relations and give color and
initiates the “action” or suit, not any party who asserts claims      expression to each other.” Harris Cnty. v. Eaton, 573 S.W.2d
or causes of action within the suit. Third-party plaintiffs and       177, 181 (Tex.1978). Giving the term “action” its common
cross-claimants do not initiate a lawsuit or legal proceeding.        meaning recognizes its similarity and relationship to the term
Because they share some similarities with plaintiffs, the             “arbitration proceeding,” so that in both terms the statute
law treats them similarly in limited respects. See, e.g.,             refers to a legal proceeding in which a plaintiff asserts a
Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800              claim or cause of action. Indeed, if the term “action” referred
(Tex.1992) (noting that a defendant who asserts a cross-claim         to a claim or cause of action rather than a lawsuit or legal
“becomes a plaintiff for res judicata purposes ” with respect         proceeding, there would be no reason for the statute to refer



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

to an “arbitration proceeding” at all, because parties resolve      liability for a year 2000 computer failure in chapter 147,
claims and causes of action in both types of legal proceedings.     see id. § 147.001(2). And when addressing medical liability
See, e.g., TEX. CIV. PRAC. & REM.CODE § 171.002                     claims (to impose an expert affidavit requirement similar
(addressing “claims” subject to arbitration); In re Labatt Food     to chapter 150's certificate-of-merit requirement), the statute
Serv. L.P., 279 S.W.3d 640, 645–46 (Tex.2009) (holding that         uses a similar but slightly different approach, using the
a wrongful death “cause of action” must be resolved through         term “claimant” and defining that term to mean any person
arbitration, which “merely changes the forum in which the           “seeking or who has sought recovery of damages in a health
claims are to be resolved”).                                        care liability claim.” Id. § 74.001(a)(2). These provisions
                                                                    demonstrate that when the Legislature wants to use a single
Next, we consider that the statute requires the plaintiff to file   term that encompasses third-party plaintiffs, cross-claimants,
a certificate of merit “in ” an action or arbitration proceeding.   and counter-claimants along with plaintiffs, it uses the term
TEX. CIV. PRAC. & REM.CODE § 150.002(a) (emphasis                   “claimant,” and defines that term accordingly.
added). As a matter *567 of ordinary language, it would be
at least unusual, if not grammatically incorrect, to say that a     By contrast, the Code repeatedly uses the word “plaintiff” to
plaintiff is “required to file” something “in” a “claim” or “in”    refer to a party who initiates the suit, rather than to every party
a “cause of action.” Rather, a party asserts a claim or cause of    who asserts a claim for relief within a suit. When addressing
action “in” a pleading that is filed “in” a lawsuit or “action.”    the general rule for venue in chapter 15, for example, the
The context of section 150.002(a), which requires the plaintiff     statute provides that “all lawsuits shall be brought,” when
to file the certificate of merit “with the complaint” and “in       other rules do not apply, “in the county in which the plaintiff
any action,” thus indicates the common meaning of the term          resided at the time of the accrual of the cause of action.”
“action” as a lawsuit or legal proceeding.                          Id. § 15.002(a)(4) (emphases added). Similarly, although (as
                                                                    noted above) the medical liability act generally refers to
Similarly, we note that the statute requires the certificate of     “claimants,” when addressing discovery procedures it refers
merit to “set forth specifically” the defendant's conduct giving    instead to “the plaintiff,” who must serve standard discovery
rise to liability “for each theory of recovery ” and “the factual   answers and responses “within 45 days after the date of
basis for each such claim.” TEX. CIV. PRAC. & REM.CODE              filing of the original petition.” Id. § 74.352(a) (emphases
§ 150.002(b) (emphases added). Rather than requiring the            added). And when addressing forum non conveniens motions
factual support for “the action,” as if that term meant a           in chapter 71, the statute uses the word “plaintiff” and defines
“claim” or “cause of action,” this language demonstrates the        it broadly to mean “a party seeking recovery of damages
statute's recognition of the difference between a “claim” and       for personal injury or wrongful death,” but the statute then
an “action.” Subsection (a) requires the plaintiff to file a        expressly provides *568 that “[t]he term does not include
certificate of merit “in an action,” and subsection (b) requires    a counterclaimant, cross-claimant, or third-party plaintiff.”
the certificate to state the factual basis for each legal theory    See id. § 71.051(h)(2). These provisions demonstrate that
or “claim” asserted in that action.                                 when the Legislature wants to use a term that includes only
                                                                    a party who initiates a lawsuit, thus excluding third-party
Turning to the meaning of the term “plaintiff,” we observe          plaintiffs, cross-claimants, and counter-claimants, it uses the
that, throughout the Civil Practice and Remedies Code, the          term “plaintiff,” rather than the term “claimant.” 15
definitions and usage of the term “plaintiff,” as opposed to
the term “claimant,” are consistent with its common meaning.        Finally, we note that this Court's practice in the Texas
When addressing frivolous pleadings and claims in chapter           Rules of Civil Procedure is also consistent with the common
9, for example, the statute uses the term “claimant,” rather        meanings and the statutory usage of the terms “plaintiff”
than the term “plaintiff,” and expressly defines the term           and “third-party plaintiff” to refer to distinct types of parties
“claimant” to include “a plaintiff, counterclaimant, cross-         in a suit. Rule 38, for example, which governs third-party
claimant, third-party plaintiff, or intervenor, seeking recovery    practice, provides that “a defending party, as a third-party
of damages.” TEX. CIV. PRAC. & REM.CODE § 9.001(1).                 plaintiff,” may bring claims against a non-party “who is or
The statute consistently utilizes the same approach when            may be liable to him or to the plaintiff.” TEX.R. CIV. P.
addressing proportionate responsibility in chapter 33, see id.
                                                                    38(a) (emphases added). 16 The person against whom the
§ 33.011(1), damages in chapter 41, see id. § 41.001(1),
                                                                    third-party plaintiff asserts such claims, “hereinafter called
liability for stalking in chapter 85, see id. § 85.001(1), and
                                                                    the third-party defendant,” may then assert any defenses


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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

“the third-party plaintiff has to the plaintiff's claim.” Id.       chosen this approach. For one, as the majority in the court
(emphases added). The third-party defendant must assert any         of appeals noted, third-party plaintiffs and cross-claimants
compulsory counterclaims against the third-party plaintiff          do not control the time and place of suit, and may not have
and any compulsory cross-claims against “other third-party          adequate time to obtain the necessary expert analysis by the
defendants,” and “[t]he plaintiff may assert any claim against      time their third-party claim or cross-claim is due. 382 S.W.3d
the third-party defendant arising out of the transaction or         at 560. 18
occurrence that is the subject matter of the plaintiff's claim
against the third-party plaintiff.” Id. (emphases added). And       In addition, as Comet and Austin Design Group argue and
our rules are also consistent with the statute's broader usage      the court of appeals' majority also noted, many defendants
of the term “claimants.” See TEX.R. CIV. P. 169(a)(1)               (like Comet in this case) deny the existence of any design
(creating expedited procedure for certain suits in which “all       defect, but alternatively assert third-party claims against
claimants, other than counter-claimants” seek monetary relief       a design professional, seeking contribution and indemnity
aggregating $100,000 or less).                                      in the event that the plaintiff prevails. It would be far
                                                                    more “odd” to require such defendants to file an expert's
Having identified the common meanings of the terms                  certificate supporting the merits of the plaintiff's claim, thus
“plaintiff” and “action” as referring to a party who initiates      requiring the defendants to *570 abandon their denial of the
a lawsuit, in contrast to a “claimant” who asserts a                merits. Instead of trying to craft a necessarily complicated
claim for relief within a lawsuit, and having determined            certificate-of-merit requirement that would appropriately
that the context of those terms supports those common               address defendants who dispute any defect and those who
meanings, we conclude that section 150.002's certificate-of-        do not, those who seek contribution and indemnity and those
merit requirement applies to a party who initiates the lawsuit,     who seek affirmative rather than derivative relief, and those
and not to defendants or third-party defendants who assert          who file only cross-claims against existing defendants and
claims for relief within a suit.                                    those who file third-party claims against new defendants, the
                                                                    Legislature may have decided that the better course was to
                                                                    impose a simpler requirement that applies only to a plaintiff
C. Absurdity and the Purpose of the Statute
                                                                    who initiates a lawsuit.
Jaster argues that construing section 150.002 to allow a party
to bring third-party claims or cross-claims without filing a
                                                                     [19] Ultimately, the most that can be said about the alleged
certificate of merit when a certificate of merit would be
                                                                    “absurdity” of the statute as we read it is that it provides
required if the same party filed the same claim as a separate
                                                                    licensed and registered professionals with early protection
suit achieves “an absurd result” and “thwarts” the purpose
                                                                    against most, but not all, meritless claims. Even so, all
of the statute. *569 See 382 S.W.3d at 565 (Henson, J.,
                                                                    claimants who assert such claims must support them with
dissenting). Jaster is correct that courts should not enforce the
                                                                    adequate and sufficient evidence, and summary judgment
plain meaning of a statute's text if doing so “leads to absurd or
                                                                    will be appropriate against those who cannot. Though some
nonsensical results.” Molinet, 356 S.W.3d at 411. We do not
                                                                    might argue that this approach was not the best policy
agree, however, that the application of the common meanings
                                                                    choice, “we read unambiguous statutes as they are written,
of the words used in section 150.002 leads to “absurd results,”
                                                                    not as they make the most policy sense.” Health Care
and we will not ignore the words' common meanings to
                                                                    Servs., 401 S.W.3d at 629. Even if the result seems to
achieve a purpose or object that is ambiguous at best.
                                                                    us to be unreasonable, “reasonableness is not the standard
                                                                    for eschewing plain statutory language.” In re Blair, 408
 [18] The “bar for reworking the words our Legislature
                                                                    S.W.3d 843, 859 (Tex.2013) (Boyd, J., concurring). That
passed into law is high, and should be. The absurdity safety
                                                                    high standard is absurdity, and we cannot say that this statute
valve is reserved for truly exceptional cases, and mere oddity
                                                                    achieves an absurd result.
does not equal absurdity.” Combs v. Health Care Serv. Corp.,
401 S.W.3d 623, 630 (Tex.2013). 17 While the dissent and            Nor can we conclude that the statute's plain meaning is
others may think it “odd” for the statute to require claimants      inconsistent with the statute's purpose. Ultimately, the dissent
to file a certificate of merit when they initiate a lawsuit but     concludes that interpreting the statute in accordance with the
not when they assert claims as part of an existing lawsuit,         common, ordinary meaning of its words “partially impairs
there are legitimate reasons why the Legislature may have           the statute's purpose.” But with regard to the issue before us,



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

all we know of the statute's purpose is that its purpose is to      to express its intent in the words of the statute itself.” C
require “the plaintiff” in “any action” to file a certificate of    & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 328
merit “with the complaint.” Other than that, the statute does       (Tex.1994) (Hecht, J., concurring and dissenting). We can
not express its purpose.                                            acknowledge the possibility that, although the Legislature
                                                                    used the words “plaintiff” and “action” in chapter 150, it
 [20] Nevertheless, the dissent asserts that the statute's          really meant “claimant” and “cause of action.” Indeed, “[i]t
“manifest object” is “to require a prima facie showing              is at least theoretically possible that legislators—like judges
of liability at the time certain professionals are sued for         or anyone else—may make a mistake.” Brown v. De La
malpractice,” post at 579, and this Court has observed, albeit      Cruz, 156 S.W.3d 560, 566 (Tex.2004). But even if that's
in a different context, that its purpose is “to deter meritless     the case here, “courts are not empowered to ‘fix’ the mistake
claims and bring them quickly to an end.” CTL/Thompson              by disregarding direct and clear statutory language that does
Tex., LLC v. Starwood Homeowner's Ass'n, Inc., 390 S.W.3d           not create an absurdity.” Tex. Lottery Comm'n v. First State
299, 301 (Tex.2013). But deciding exactly which licensed and        Bank of DeQueen, 325 S.W.3d 628, 638 (Tex.2010) (citing
registered professionals the Legislature intended to protect        Brown, 156 S.W.3d at 566). “Courts are not responsible for
(those sued as defendants, those brought into a case as third-      omissions in legislation, but we are responsible for a true
party defendants, or both?) and which meritless claims the          and fair interpretation of the law as it is written.” Id. at 637.
Legislature intended to bring quickly to an end (those filed by     In other words, as today's dissenting justice has explained,
a party who initiates a lawsuit, those filed by defendants after    “[a] court must be careful not to substitute its own view of
they are brought into a lawsuit, or both?) presents a different     what should have been intended for what was intended.” Lane
question. “[N]o legislation pursues its purposes at all costs.      Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 321
Deciding what competing values will or will not be sacrificed       (Tex.2000) (Hecht, J., concurring).
to the achievement of a particular objective is the very essence
of legislative choice.” Rodriguez v. United States, 480 U.S.        We conclude that construing the terms “the plaintiff” and
522, 525–26, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). We              “any action” in section 150.002 according to their common
must look to the statute's text to determine the policy choices     meanings does not lead to absurd results or undermine the
that the Legislature made when deciding how to achieve the          statute's stated purpose.
“manifest object” of section 150.002. “[I]t frustrates rather
than effectuates legislative intent simplistically to assume that
whatever furthers the statute's primary objective must be the
                                                                                                  III.
law.” Id. at 526, 107 S.Ct. 1391. We “are bound, not only by
the ultimate purposes [the Legislature] has selected, but by
the means it has deemed appropriate, and prescribed, for the                                  Conclusion
pursuit of those purposes.” *571 MCI Telecomm. Corp. v.
Am. Tel. & Tel. Co., 512 U.S. 218, 231 n. 4, 114 S.Ct. 2223,        We hold that the certificate-of-merit requirement in section
                                                                    150.002 of the Civil Practice and Remedies Code applies to
129 L.Ed.2d 182 (1994). The language of section 150.002
                                                                    “the plaintiff” who initiates an action for damages arising
indicates that its purpose is to deter and end meritless claims
                                                                    out of the provision of professional services by a licensed or
that “the plaintiff” asserts “with the complaint” that initiates
                                                                    registered professional, and does not apply to a defendant or
an “action.” The Legislature has to balance many interests,
                                                                    third-party defendant who asserts such claims. We therefore
and for the reasons we have explained, it may have decided
                                                                    affirm the court of appeals' judgment upholding the trial
that requirement strikes the proper balance. We must rely on
                                                                    court's denial of Jaster's motion to dismiss.
the words of the statute, rather than rewrite those words to
achieve an unstated purpose.

 [21] [22] [23] Finally, we address the dissent's complaint Justice WILLETT filed a concurring opinion, in which Justice
that our analysis of the statute demands too much “precision”    LEHRMANN joined in part, and in which Justice DEVINE
from the Legislature, at least if the goal of our analysis is to joined.
“giv[e] effect to the Legislature's intent in the enactment.”
Post at 579. We disagree and instead conclude that “[w]e
must assume that the Legislature has done its very best



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005


Chief Justice HECHT filed a dissenting opinion, in which
Justice GREEN and Justice GUZMAN joined, and in which                   A. “Plaintiff” Refers Only to the Original Plaintiff.
Justice BROWN joined in all but Part II.
                                                                     If action refers to a civil suit as a whole and not to
                                                                     individual claims, the meaning of “plaintiff” is necessarily
Justice WILLETT, joined in part by Justice LEHRMANN,                 circumscribed. The statute says “the plaintiff.” Use of “the”
and joined by Justice DEVINE, concurring.                            indicates that the language is trying to pinpoint one particular
I join the plurality opinion 1 but write separately to               party in the action or arbitration proceeding. Since “action”
underscore the centrality of *572 semantic context in                must be referring to the suit as a whole, this singular emphasis
statutory interpretation and the perils of resting on a statute's    on a particular plaintiff seems to rest most naturally with
supposed purpose.                                                    the plaintiff who initiated the suit. Likewise, the required
                                                                     affidavit is to be filed with “the complaint.” Again, this
                                                                     signals a focus on a particular party at a particular moment
                                                                     in the lawsuit. “The complaint” most naturally refers to the
     I. Context Indicates that Third–Party Plaintiffs                initial pleading that puts the “action” or suit into motion. Of
         Need Not Comply with Section 150.002.                       course, other plaintiffs may come along through intervention
                                                                     or joinder. But when “the” shows up before both “plaintiff”
I agree with the dissent that some words, taken in isolation,
                                                                     and “complaint,” it indicates the targeting of someone and
do not yield a platonic form free of ambiguity. However,
                                                                     something specific—the plaintiff and petition that put the suit
context sheds light on meaning, and I believe the language of
                                                                     in motion. This makes sense in light of the role of motions
this statute, viewed in context, excludes third-party plaintiffs
                                                                     to dismiss—they are designed as sentinels that guard the
from the expert-affidavit requirement. Thus, the plurality
                                                                     gate and thus most naturally target the party who first comes
opinion's analysis of the context does not just support its
                                                                     knocking. Moreover, the manifest object of the provision is
analysis of isolated words—it forms an essential foundation
                                                                     fulfilled after the initial plaintiff meets the requirement. There
for understanding those words.
                                                                     is no *573 obvious need to require each additional plaintiff
                                                                     who sues the defendant to file a separate affidavit in order
Judges must navigate a narrow course “between a sterile
                                                                     for this threshold protection to be provided because the initial
literalism which loses sight of the forest for the trees, and
                                                                     affidavit has already provided the desired filtering effect.
a proper scruple against imputing meanings for which the
words give no warrant.” 2 For that reason, “[l]anguage cannot
be interpreted apart from context.” 3 Meaning is bound to
                                                                               B. A Claim Seeking Contribution and
and bound by context. Words derive substance from the
                                                                            Indemnity Is Not an Action “For Damages.”
ecosystem of language in which we find them, and we must
“consider the entire text, in view of its structure and of           Additionally, section 150.002 does not apply to third-party
the physical and logical relation of its many parts.” 4 The          plaintiffs seeking indemnity and contribution because the
meaning of language, plain or not, must be drawn from the            affidavit requirement is limited to actions “for damages.”
surrounding context, particularly everyday words and phrases         I would read this as damages sought by “the plaintiff”
that are inordinately context-sensitive. Such a contextual           who seeks a direct right to recover against the design
reading here demonstrates that “the plaintiff” who files “the        professional. Here, Comet does not seek damages—it seeks
complaint” in an “action ... for damages” refers to the original     only contribution and indemnity. When a defendant files
plaintiff in the suit, and not a third-party plaintiff.              a third-party action against a third-party defendant seeking
                                                                     contribution and indemnity, the defendant does not increase
I agree with the plurality opinion's analysis of the word            the possible scope of damages that the plaintiff will ultimately
“action” in light of the statute's context and briefly add several   recover. The only changing dynamic is the proportionate
other contextual considerations that support the plurality           share of the damages to be paid. Thus, a claim for contribution
opinion's conclusion that the statute does not require third-        and indemnity is not an action “for damages” because it does
party plaintiffs to file expert affidavits.                          not provide an independent basis for any new damages. It
                                                                     only adds another variable in determining how the damages
                                                                     already sought by the original plaintiff will be allocated



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

among co-liable parties. Thus, actions for contribution and         result does not rise to the kind of absurdity that would justify
indemnity are not actions “for damages.”                            deviation from a fair reading of the text in favor of a putative
                                                                    purpose.
When the language of section 150.002 is viewed as a whole,
the meaning of “plaintiff” becomes clear. “Action” refers to        Liberal use of the absurdity doctrine too often devolves
civil proceedings, or the lawsuit as a whole. “The plaintiff”       into purposive interpretation of statutes. And reliance
therefore is the original plaintiff. Moreover, a third-party        on legislative purpose always tempts but rarely tempers.
plaintiff seeking only contribution and indemnity does not          That temptation reaches its zenith when the upshot of a
have a claim “for damages.” Thus, a third-party plaintiff need      straightforward reading seems illogical or unjust. But a fair
not comply with the expert-affidavit requirement.                   reading may well require an unfair result. When interpreting
                                                                    the Legislature's words, we cannot revise them under the
                                                                    guise of interpreting them. “Making law work is a proper goal
                                                                    for judges only at the retail level; substance is in the main for
        II. Analysis of “Action” and “Plaintiff” in
       Isolation Does Not Free Them of Ambiguity.                   the political branches.” 6

In analyzing “action” and “plaintiff,” the plurality opinion        Plus, careful textual commitment can encourage careful
relies on dictionaries, other statutory provisions, and caselaw.    drafting. When legislatures come to see courts as editors
These are helpful tools but often insufficient. “[T]he choice       rather than adjudicators, busy legislators may leave the
among meanings must have a footing more solid than a                judiciary to tighten the screws on loose language down
dictionary—which is a museum of words, an historical                the road. Vague legislation is sometimes inadvertent and
catalog rather than a means to decode the work of                   sometimes intentional, but it is always a recipe for increased
legislatures.” 5 Reliance on caselaw definitions faces a            litigation and judicial guesswork. By sticking to our limited
similar problem. In both circumstances, the words are not           role, judges do more to improve the quality of the law than
considered in the context of their use in the statute before us.    they ever could by decamping from text to hunt the snark of
With caselaw, the problem is exacerbated because entirely           unvoiced legislative purpose.
different circumstances may have animated our former
interpretation of a particular word. Evidence of meaning from       In order to carefully police our limited role, the bar for
other statutes is also useful, but this can be tricky, as words     application of the absurdity doctrine must remain high.
in statutes may take on unique or varying shades of meaning         Peculiarity or unfairness is not sufficient to trigger the
depending on the context and the purpose for which they are         absurdity doctrine. As we held recently—and unanimously
used. Because these tools for analyzing isolated words have         —statutory language “can often work peculiar outcomes,
limitations, context becomes essential to clarity.                  including over- or under-inclusiveness.... [but] mere oddity
                                                                    does not equal absurdity.... The absurdity backdrop requires
                                                                    more than a curious loophole.” 7 In general, “if the legal
                                                                    deck is stacked via technical statutory requirements, the
          III. Jaster's Purposive Approach Does
            Not Dethrone the Primacy of Text.                       Legislature should reshuffle the equities, not us.” 8 Here,
                                                                    the failure of the statute to protect design professionals
Jaster and the court of appeals' dissent rely more heavily than     from third-party plaintiff claims while furnishing protection
CHIEF JUSTICE HECHT on the statute's alleged purpose.               from original plaintiffs may be “quirky,” but that is “quite
Both advocate use of the absurdity doctrine to effectuate           different from proving it was quite impossible that any
the statute's purpose. That purpose, according to Jaster,
                                                                    rational Legislature could have intended it.” 9
is to shelter design professionals from the *574 waste
of defending non-meritorious claims. He complains that
                                                                    Indeed, a rational Legislature could have wanted to exclude
Comet's reading of the statute would frustrate this purpose
                                                                    third-party plaintiffs because requiring their compliance with
because the design professional directly sued by the original
                                                                    section 150.002 creates a “quirky” result of its own. Section
plaintiff is protected, while the design professional who is
                                                                    150.002 requires submission of an expert affidavit along
dragged into the lawsuit by a defendant eager to pass along
                                                                    with the complaint that sets forth “specifically at least one
or share liability is not. Parties similarly situated are treated
                                                                    negligent act, error, or omission claimed to exist and the
differently, which may seem illogical and unfair. But this


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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

factual basis for each such claim.” It is not clear whether this     a third-party plaintiff and an intervenor can be a plaintiff,
affidavit must lay out some factual basis for each essential         so long as they are not also defendants. Not to complicate
element of a negligence claim, but it must at least lay out          matters, the author of the Court's opinion in Ford agrees that
the factual basis for the “negligent act, error, or omission.”       this case is correctly decided, but the author of the Court's
A persuasive affidavit regarding a negligent act will often          opinion in this case dissents in Ford. And another dissenter
require evidence of the alleged defect resulting from the            in Ford joins the opinion in this case—but that begins to
design professional's supposed *575 negligence. However,             complicate matters.
this kind of evidence will often also constitute evidence
helpful to establish the original plaintiff's claim against the      I suspect that these cases will leave many readers scratching
defendant home-builder before the plaintiff has presented            their heads. Though the Court is trying to adhere to the
his case-in-chief, moved for summary judgment, or even               statutory text, whatever the result, it opens itself to the
engaged in full discovery. In other words, application of            criticism that its analysis is picky and detached from reality.
section 150.002 to a third-party plaintiff will often place          Intending to be careful, the Court risks being viewed as
the defendant/third-party plaintiff in the unenviable position       conducting a contest among the Pharisees in the Temple of
of either breaking ground for his own burial or foregoing            Textualism over who is the most devout.
his right to indemnity or contribution. While this may not
amount to an absurd result, it certainly awakens our sense           Faithfulness to the principle that the words of a statute are
of unfairness in the same manner as the supposed absurdity           the law may necessitate embracing a result that is peculiar or
of not holding third-party plaintiffs to the same heightened         worse, yet unavoidable. But unnecessarily embracing such a
pleading requirement as original plaintiffs. It is not our place     result undermines the principle by suggesting that more and
to choose between these anomalous results.                           less reasonable interpretations are to be treated equally. The
                                                                     Judiciary's sole objective in interpreting statutes is to give
Careful textual analysis here points to a clear result, and the      effect to the Legislature's intent expressed in its words. Out of
plurality opinion rightly declines to engage in the purposive        respect for the Legislative Branch, we must read their words
analysis urged by Jaster. Here, context clearly indicates that       the way *576 they have written them—to make sense. I am
the text does not require third-party plaintiffs to file an expert   not confident we have achieved that result in this case and
affidavit with the third-party petition.                             therefore respectfully dissent.



Chief Justice HECHT, joined by Justice GREEN and Justice                                            I
GUZMAN, and in all but Part II by Justice BROWN,
dissenting.                                                          By statute, “the plaintiff” in “any action or arbitration
                                                                     proceeding” for malpractice by certain professionals must
In this case and another decided today, In re Ford, 1 the Court
                                                                     ordinarily file “with the complaint” an affidavit supporting
has written more on the subject of who is a “plaintiff” than
I imagine all the other courts in the English-speaking world         each theory of recovery. 3 All we have to decide is whether
have ever written, all together. The distinction is a dubious        this requirement applies when a professional is sued by a
one.                                                                 third-party plaintiff—a defendant suing a non-party. 4 One
                                                                     might think this would be pretty easy: a third-party plaintiff
The cases are quite different, of course—the issue in this           is, in name itself, a plaintiff, and a suit is an action, so yes,
case is who the plaintiff is, while in Ford the issue is who         the requirement applies. But the reader will by now have seen
a plaintiff is, and although both cases involve statutes in          from the plurality and concurring opinions that the issue is far
the Texas Civil Practice and Remedies Code, 2 the statutes           more complicated than that.
are in separate volumes. So it is hardly surprising that the
cases reach different, and arguably contradictory, outcomes.         The answer, according to the plurality opinion, depends on the
Without trying to put too fine a point on it, the Court holds in     “plain”, “common”, and “ordinary” meaning of the statute's
this case that a third-party plaintiff cannot be the plaintiff in    operative words, “the plaintiff” and “any action”. 5 The
any action, and is of two minds about whether an intervenor          plurality opinion then embarks on what is the most exhaustive
can be the plaintiff, while in Ford the Court holds that both        treatment of that subject in the law of *577 Texas, if not



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              11
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

all of American jurisprudence. It is masterful. I would not         “plaintiffs” who do initiate suit, they become “plaintiffs”,
challenge a word, and there is certainly nothing left to add.       though maybe not under the statute in this case, a question we
All I can do of any use is to summarize the plurality opinion's     need not decide. 17
analysis and then offer a few reflections.
                                                                    Conclusion: Third-party plaintiffs are not plaintiffs.

According to the plurality opinion:
                                                                     *578 To the plurality opinion's splendid analysis and
The word “action” is sometimes used “more broadly” to               conclusion, I respectfully offer five reservations.
refer to a “cause of action”, but an “action” is really an
entire lawsuit, and a “cause of action” is only a “right to         First: The plurality opinion has proven beyond any doubt that
                                                                    sometimes third-party plaintiffs are plaintiffs and sometimes
relief”, or at least a “claim” to such a right. 6 A person
                                                                    not, sometimes third-party actions are actions and sometimes
with a “cause of action” can bring an “action”, which is
                                                                    not, and while sometimes the variations can be explained,
“generally synonymous with ‘suit’ ”, except that “the word
                                                                    sometimes they cannot be. Any remaining doubt is quickly
‘suit’ can be ‘more general in its comprehension than the word
                                                                    dispelled by searching caselaw and statutes for the terms
“action” ’ ”. 7 Historically, an “action” was a legal proceeding    “third-party plaintiff”, “third-party action”, and “third-party
and a “suit” was an equitable one. 8 The important thing is         cause of action”, and noting the various, inconsistent ways in
that both an “action” and a “suit” are “proceedings”, though        which those terms are used. When a word is used sometimes
actually, all three words, while different, have been used          to mean one thing and sometimes another, neither is “plain”,
interchangeably, along with “case”, “lawsuit”, and “cause”. 9       “common”, or “ordinary” to the exclusion of the other.
An “action” is a “cause”, but it is not a “cause of action”. That   Ironically, the plurality opinion's labors to prescribe definite
is, except for one time in Rule 85 of the Texas Rules of Civil      meanings for “plaintiff” and “action” only demonstrate that
                                                                    for it, the words “plain”, “common”, and “ordinary” have no
Procedure. 10
                                                                    real meaning at all.


Furthermore:                                                        Second: The underlying assumption of the plurality opinion's
                                                                    approach is that when it finally arrives at the real meaning
Dictionaries define “plaintiff” as the person who initiates         of the inescapably imprecise words, “plaintiff” and “action”,
an “action” or “suit”. 11 Third-party plaintiffs and cross-         trudging through dictionaries, cases, and statutes, parsing
claimants “share some similarities” with “plaintiffs”, and the      and explaining, and finally discarding what it considers
law treats them similarly “in limited respects”. For example,       to be misuses of the words, the end result will be what
third-party plaintiffs and cross-claimants initiate proceedings     the Legislature intended without going through the same
against third-party defendants and cross-defendants, and            process. When lawyers and judges have put words to various,
                                                                    inconsistent uses over time, legislators simply cannot be
they are plaintiffs for res judicata purposes. 12 But third-
                                                                    presumed, alone of all creatures, to be precise—or closer to
party plaintiffs and cross-claimants are not “plaintiffs” in an
                                                                    the point, to have been more precise in one statute than they
“action” because they initiated only part of the suit, not the
                                                                    were in others. And in Chapter 150, they, in fact, were not
whole suit. 13 There must be “a direct relationship between         precise at all.
the words ‘plaintiff’ and ‘action.’ ” 14 All “plaintiffs” are
“claimants”, but not all “claimants” are “plaintiffs”, and          For example, a “complaint”, with which a certificate must
“[t]hroughout the Civil Practices and Remedies Code,” that          be filed, is not part of Texas civil procedure. Obviously, a
is the way those words are defined and used. When the               “petition” is intended. Would the Court hold that Chapter
Legislature says “plaintiff”, it means the person initiating        150 is dead letter because it applies only to the filing of a
suit, and when it says “claimant”, it means “plaintiffs” and        “complaint”, which is certainly not a “petition”? Heavens, no,
others who assert “causes of action”. 15 Actually, that is          the plurality opinion says. That would be absurd. 18
not quite right. Chapter 74 uses the terms “plaintiff” and
“claimant” interchangeably in the very same sentence. 16            For another example, a certificate must be filed by “the
Also, some “plaintiffs” do not initiate suit but intervene or       plaintiff” in an “arbitration proceeding”, but in an arbitration
are involuntarily joined, but by being included among the           proceeding, the person seeking relief is uniformly referred


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             12
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

to as a “claimant”, not as a “plaintiff”. 19 Does this mean         It may be that “plaintiff” and “action” should always have
that certificates of merit need never be filed in arbitration       only the meanings the Court ascribes to them. But that has
proceedings? I suppose the Court would think that absurd,           never been true—hence, the need for lengthy analysis—and
too.                                                                to demand such exactitude in this case impairs the statute's
                                                                    purpose.
Yet if there is any justification for interpreting “action”
strictly, “plaintiff” somewhat strictly, and “complaint”            The manifest object of Chapter 150 is to require a prima
loosely, all three words in the same sentence, it is not            facie showing of liability at the time certain professionals are
apparent. More importantly, the process of interpreting             sued for malpractice. Remarkably, and tellingly, the Court
statutes cannot legitimately ascribe a precision to them that       states that it simply cannot tell what the manifest object
the process *579 of writing them gave no indication, and            of Chapter 150 is because it cannot be sure exactly which
probably was incapable, of producing. At least, it cannot do so     professionals are to be protected or precisely from what
with the professed purpose of giving effect to the Legislature's    claims. An obvious answer, especially when the Legislature
intent in the enactment. Judicial interpretation should not         has not said otherwise, is: all. The concurring opinion admits
imagine a Legislature that does not exist.                          that imposing the requirement only on a plaintiff suing a
                                                                    defendant and not on a third-party plaintiff suing a third-party
Third: As the plurality opinion candidly acknowledges, “the         defendant “may be ‘quirky’ ”, 23 but the concurring opinion
terms ‘plaintiff’ and ‘action’ may sometimes be used more           and the plurality opinion conceive two reasons why this was
broadly than their common meanings would support.” 20               exactly what the Legislature intended.
When the Legislature has used the same words to mean
different things from time to time, at least once in the same       One is that a third-party plaintiff may be caught off-guard by
sentence, how is it possible to determine from the words            a lawsuit and not have enough time to procure the required
alone what it meant this time? In Chapter 74 of the Civil           affidavit before the third-party petition must be filed. 24 But
Practice and Remedies Code, the Legislature uses “plaintiff”        the third-party plaintiff will *580 never have less than
to mean “claimant”, which includes third-party plaintiffs. 21       51 days, 25 and that time may be extended by motion or
How can the Court ascertain, from nothing more than the             agreement. It is possible that the Legislature could have
words themselves, that the Legislature did not intend the same      considered this time pressure sufficient reason to except an
meaning in Chapter 150?                                             entire group of claims from a requirement intended to protect
                                                                    all professionals, but it is just as likely that the Legislature
Fourth: The plurality opinion demonstrates that judicial            thought the opposite and did not create the loophole the Court
interpretation of statutes cannot focus on text alone; it must      finds today.
examine the text in context. The plurality and concurring
opinions profess agreement that context is important, but by        Another motive the Court thinks the Legislature might
context, both mean only surrounding words, not the reality          have had for excluding third-party plaintiffs from the
they are intended to affect. The concurring opinion warns           statutory requirement is that to include them is “necessarily
against “a sterile literalism which loses sight of the forest for   complicated” because third-party plaintiffs and cross-
the trees”, but staring at little clumps of trees—losing sight of   claimants may be seeking “affirmative rather than derivative
the forest for the groves—is no more fertile an approach.           relief” or only “contribution and indemnity”. 26 But the
                                                                    Court simply presumes that it is “appropriate[ ]” to tailor
The context the Court ignores is the world in which the             the affidavit requirement to each such situation. It is far
words it has so carefully examined operate. It has long             simpler, and no less appropriate, to treat all claimants the
been the Court's rule that “a statute is to be construed            same: a charge of malpractice cannot be made against
with reference to its manifest object, and if the language is       these professionals without something more than mere
susceptible of two constructions, one of which will carry out       allegations to back it up. And the cross-claimant seeking only
and the other defeat such manifest object, it should receive        contribution and indemnity can use a certificate previously
the former construction.” 22 But the rule is disregarded in         filed by a plaintiff.
a Rabbinic fixation with individual words. The plurality
opinion's impressive analysis may be correct in the abstract.



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             13
Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

Fifth: Despite every effort, the Court itself cannot plough          action involving all the parties and claims can be brought in
a straight furrow. Third-party plaintiffs are not covered by         Texas without being dismissed under Section 71.051. So the
the statute, even if the third-party action is severed, so that      question becomes: are the procedural differences in the way
the third-party plaintiff becomes the plaintiff in the severed       the case was brought and the way it could have been brought
action and its initiator, just as if the third-party action had      significant to the ostensible purpose of Section 71.051? The
been filed separately to begin with. And when parties joined         answer is plainly no. Without answering that question, the
as plaintiffs after the action has been initiated are the first to   dissents would dismiss the intervenors' claims because, in
assert a malpractice claim against a professional, the Court         this action, they are more aligned with the defendant's. In the
cannot say for sure whether they are plaintiffs or not. It feebly    dissents' view, the intervenors simply made an error that cost
hints that they may be plaintiffs by association, falling prey to    them their case in Texas.
the smudging of meanings it is trying to rectify, then declines
to answer its own question lest its explanation be advisory. 27      In my view, while it is possible to read the statute as the
                                                                     dissents do, it is at least as reasonable to read it as the Court
                                                                     does, and it is impossible to think the Legislature intended,
                                                                     as between the two, the interpretation that leads to different
                               II                                    results for essentially identical parties. And we should not
                                                                     think, as the dissents do, that the Legislature, in trying to
And the plough hits a rock in Ford. That case involves Section
                                                                     preserve a Texas forum for Texas residents, craftily laid a trap
71.051 regarding forum non conveniens. The statute requires
                                                                     so that by suing one way rather than another, they would lose
dismissal of actions falling under that doctrine, as determined
                                                                     their rights altogether.
by applying several factors, but excepts cases in which “the
plaintiff is a legal resident of this state.” 28 The statute also    In both this case and Ford, we must interpret statutory
defines “plaintiff” as “a party seeking recovery of damages          language that, in the circumstances presented, is imprecise.
for personal injury or wrongful death” but expressly excludes        In both cases, the statutory purpose is evident, not something
third-party plaintiffs. 29                                           that we must supply. “The evident purpose of what a text
                                                                     seeks to achieve is an essential element of context that gives
The problem in the case is this. A nonresident plaintiff             meaning to words.” 30 When that purpose can be determined
sued his deceased brother's estate for injuries suffered in          from the text, as it can easily be in these cases, “[a] textually
a vehicular accident in Mexico in which the brother, who             permissible interpretation that furthers rather than obstructs
owned and maintained the vehicle, was killed. The estate, in
                                                                     [a statute's] purpose should be favored.” 31
turn, sued Ford, and then so did the plaintiff. At that point,
the case could have been dismissed under Section 71.051. But
the decedent's wrongful death beneficiaries, some of whom
are residents, intervened, also suing Ford, but not, of course,                                    III
suing the defendant estate. If the intervenors are plaintiffs, the
case cannot be dismissed. But are they third-party plaintiffs,       Finally, I add a brief word in response to the argument that
statutorily excluded from “plaintiffs”? No, the Court holds,         a stricter judicial adherence to text will produce more careful
because in context, the third-party plaintiffs referred to in the    statutory drafting. For one thing, I doubt whether that is true,
 *581 statute must also be defendants, and the intervenors are       or even possible. This Court pores over every word, every
more aligned with the plaintiff than with the defendant.             comma, in its opinions, trying to be as exact as possible, and
                                                                     still disagreements regularly arise—often even among us—
I join in the Court's opinion in Ford, though the Court's            about what was really said. The legislative process does not
detailed analysis of the text and the alignment of the parties       usually allow for the same care to be taken in the choice
is similar to the Court's analysis in the present case, which        of language. There are many authors, the text is subject
as I have said, I find misguided. Unquestionably, however,           to amendments of all sorts, friendly and unfriendly, and in
had the intervenors filed their own suit, it could not have          the end, the product is often one of compromise, which is
been dismissed and could have been consolidated with the             essential to the legislative process.
original plaintiff's suit, or if that suit had been dismissed, the
plaintiff could have intervened in the other suit. Thus, the         More importantly, the Judiciary is not, in my view, entitled
                                                                     to insist that the Legislature write for our approval. Our


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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

                                                                                 wryly at the futile and ridiculous cry
objective in interpreting statutes is to find the Legislature's
                                                                                 for aid, then saw with a start that
intent in the words it enacted, not what a group of
                                                                                 the words were ambiguous, realized
grammarians and researchers might have intended by those
                                                                                 with alarm that they were not perhaps,
words. This does not justify substituting our meaning for the
                                                                                 intended as a call for police but as a
Legislature's, or what we might consider desirable policies for
                                                                                 heroic warning from the grave by a
those it has chosen. But proper statutory *582 interpretation
                                                                                 doomed friend to everyone who was
does require us to give careful consideration to the reality in
                                                                                 not a policeman with a club and gun
which and for which the Legislature acted. For legislators,
                                                                                 and a mob of other policemen with
each statute has a purpose, which is the context in which
                                                                                 clubs and guns to back him up. “Help!
the words speak. When we can find that purpose without
                                                                                 Police!” the man had cried, and he
inventing it, and pursue it without adding or detracting from
it, it should inform our interpretation.                                         could have been shouting of danger. 32

******                                                             The starting point of textual analysis must be the words
                                                                   chosen, but it cannot be the ending point, lest the exercise be
Since the Tower of Babel, expression is inexact. Joseph Heller     criticized as verbomania. In my view, the Court in this case
has written powerfully of the importance of context:               rejects a simple, reasonable—and yes, plain—interpretation
                                                                   of a statute in favor of a demanding but inconsistent word
            “Help!” he shrieked shrilly in a voice                 analysis that partially impairs the statute's purpose. The Court
            strangling in its own emotion, as the                  narrowly avoids doing the same thing in Ford. We would not
            policemen carried him to the open                      interpret our own work this way, and it is no more appropriate
            doors in the rear of the ambulance                     because the work is that of another Branch of Government. I
            and threw him inside. “Police! Help!                   respectfully dissent.
            Police!” The doors were shut and
            bolted, and the ambulance raced away.
            There was a humorless irony in the                     All Citations
            ludicrous panic of the man screaming
            for help to the police while policemen                 438 S.W.3d 556, 57 Tex. Sup. Ct. J. 1005
            were all around him. Yossarian smiled


Footnotes
1      Dawoud also sued Comet's principals, Joe and Laura Schneider. We refer to all three defendants jointly as “Comet.”
2      Comet later filed a second amended third-party petition, attaching the same certificate of merit.
3      The statute expressly authorizes an interlocutory appeal from an order granting or denying a motion to dismiss. See TEX.
       CIV. PRAC. & REM.CODE § 150.002(f).
4      Our references to section 150.002 are to the 2005 version of the statute, which the parties agree governs this case. The
       Legislature has since amended section 150.002, but the current version still imposes the certificate-of-merit requirement
       on “the plaintiff” in “any action or arbitration proceeding for damages arising out of the provision of professional services
       by a licensed or registered professional,” including a licensed professional engineer. See TEX. CIV. PRAC. & REM.CODE
       § 150.002(a). Thus, our construction of the 2005 version also applies to the current version of the statute.
5      This provision was found in subsection (d) in the 2005 version of the statute and was substantively the same for purposes
       of this case. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896–97 (amended
       2005, 2009) (current version codified at TEX. CIV. PRAC. & REM.CODE § 150.002(e)).
6      Chapter 150 defines “licensed or registered professional” to include licensed architects, licensed professional engineers,
       registered professional land surveyors, registered landscape architects, and firms in which such licensed or registered
       professionals practice. See TEX. CIV. PRAC. & REM.CODE § 150.001(1–a).
7      Comet and Austin Design Group argue additional grounds for affirming the appellate court's judgment, but we need not
       reach them in light of our construction of the statute.




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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

8      We recently addressed section 150.002 in CTL/Thompson Tex., L.L.C. v. Starwood Homeowners Ass'n, but that appeal
       did not involve the issue of whether the certificate-of-merit requirement applies to parties other than a “plaintiff.” 390
       S.W.3d 299 (Tex.2013).
9      By contrast, the dissent begins with its own conclusion, suggesting that the resolution of this case should “be pretty easy”
       because, after all, it says (without citation), “a third-party plaintiff is, in name itself, a plaintiff, and a suit is an action.” Post
       at 576 (Hecht, C.J., dissenting) (emphasis in original). We cannot be quite so cavalier when fulfilling our duty to construe
       Texas statutes, and we cannot begin our analysis with our own unsupported conclusions on the very issue before us.
       We begin, instead, with the language of the statute.
10     Examples of our reliance on these various sources to determine a word's common, ordinary meaning are too numerous
       to cite, but for examples from opinions we issued just within the past two years, see Zanchi v. Lane, 408 S.W.3d 373,
       378 (Tex.2013) (relying on dictionary definitions, our prior decisions, the rules of procedure, and statutory definitions for
       the common meaning of “party”); Rachal v. Reitz, 403 S.W.3d 840, 845 (Tex.2013) (relying on dictionary definitions and
       treatises for the common meaning of “agreement”); Morton v. Nguyen, 412 S.W.3d 506, 510–12 (Tex.2013) (relying on
       our prior decisions, dictionary definitions, and the Restatement for the common meanings of “rescission” and “refund”);
       City of Hous. v. Bates, 406 S.W.3d 539, 545–47 (Tex.2013) (relying on dictionary definitions and a city ordinance for
       the common meanings of “leave” and “salary”); State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 181 (Tex.2013)
       (per curiam) (relying on dictionary definition of “novelty”); Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 512 n.
       16 (Tex.2012) (relying on dictionary definitions and our prior opinions for the common meaning of “requisite”); Evanston
       Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 382–83 (Tex.2012) (relying on our prior opinions, other statutes, and
       treatises for the common meaning of “property”); Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex.2012)
       (relying on dictionary definition for common meanings of “distribution” and “transmission”).
11     See also Magill v. Watson, 409 S.W.3d 673, 679 (Tex.App.-Houston [1st Dist.] 2013, no pet.) (a “cause of action” consists
       of “those facts entitling one to institute and maintain an action at law or in equity”); City of Texarkana v. Cities of New
       Boston, 141 S.W.3d 778, 788 (Tex.App.-Texarkana 2004, no pet.) (stating that a “pleading” is the vehicle for “alleging
       a cause of action” and thus the “means by which one party institutes a lawsuit.”); Elmo v. James, 282 S.W. 835, 839
       (Tex.Civ.App.-Fort Worth 1926, writ dism'd w.o.j.) (“The facts necessary to be alleged and proved in order to obtain the
       relief sought, and on account of which the action is instituted, logically constitute the cause of action.”).
12     Generally, our rules of civil procedure also recognize the distinction between an “action,” “suit,” or “cause” and a “cause
       of action” or “claim.” Compare, e.g., TEX.R. CIV. P. 86 (referring to transfer of venue “from the county where the action is
       pending”) (emphasis added) and TEX.R. CIV. P. 89 (providing that the “cause” shall be transferred and “such suit” filed
       in the new county, but if “the cause” is “severable as to parties defendant” it must be “ordered transferred as to one or
       more defendants but not as to all”) with TEX.R. CIV. P. 91a.7 (providing for dismissal of a baseless “cause of action”
       and award of attorney's fees incurred “with respect to the challenged cause of action,” except in “an action” by or against
       a governmental entity or public official).
13     We agree with the concurring opinion's observation that, because our “tools for analyzing isolated words have limitations,
       context becomes essential to clarity.” Post at 573 (Willett, J., concurring). But as the concurring and dissenting justices
       have previously acknowledged, both the words and the context matter. City of Rockwall v. Hughes, 246 S.W.3d 621, 632
       (Tex.2008) (“When Searching for Statutory Meaning, Words Matter–And So Does Context.”) (Willett, J., joined by Hecht,
       J., dissenting). If we have engaged in an “exhaustive” (if not “masterful,” “splendid,” and “impressive”) analysis, post at
       576–77 (Hecht, C.J., dissenting), of the common, ordinary meanings of “plaintiff” and “action,” we have done so only and
       precisely because “words matter.” Far from being “detached from reality,” post at 575 (Hecht, C.J., dissenting), when it
       comes to fulfilling our role of interpreting statutes, the language of the law is our reality, at least unless we decide to start
       writing the law ourselves. Because the statute does not define the determinative words, we determine and apply their
       plain, ordinary, common meaning “unless a different meaning is apparent from the context.” Molinet, 356 S.W.3d at 411
       (emphasis added). Having determined the words' common, ordinary meanings, we now consider whether the context
       compels a different meaning.
14     We have identified one instance within the Civil Practice and Remedies Code, for example, where it appears that the
       term “plaintiff” is used interchangeably with the broader term “claimant.” See TEX. CIV. PRAC. & REM.CODE § 74.351(c)
       (“If the claimant does not receive notice of the court's ruling granting the extension until after the 120–day deadline has
       passed, then the 30–day extension shall run from the date the plaintiff first received the notice.”). Similarly, we have
       identified one instance within our Rules of Civil Procedure where it appears that the term “action” is used as a short-hand
       reference to refer to a cross-claim. See TEX.R. CIV. P. 85 (providing that a defendant's original answer may “present
       a cross-action”).



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

15     We note that, as the Civil Practice and Remedies Code recognizes, there may be more than one plaintiff in a single
       lawsuit, “whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than
       one plaintiff, or otherwise.” TEX. CIV. PRAC. & REM.CODE § 15.003(a). The recognition that those added to the suit
       by joinder or intervention may become “plaintiffs” is also consistent with the common meaning of the term, as such
       joinder or intervention simply places them among those who initiated the suit. See, e.g., TEX.R. CIV. P. 40 (explaining
       circumstances in which “[a]ll persons may join in one action as plaintiffs ”) (emphasis added). Because this case does
       not present the issue of whether section 150.002 requires each individual plaintiff in a multi-plaintiff suit and those added
       as plaintiffs by joinder or intervention to file separate certificates of merit, we may not address that issue here without
       rendering an advisory opinion.
16     Thus, as the dissent agrees, a third-party plaintiff, under Rule 38, is not a “plaintiff” but “a defendant suing a non-party.”
       Post at 576 (emphasis added).
17     One example of an absurd result may be found in section 150.002(a)'s use of the word “complaint.” As the dissent
       notes, while parties in federal courts file “complaints,” see, e.g., FED.R.CIV.P. 3 (“A civil action is commenced by filing a
       complaint with the court.”), parties in Texas courts file “petitions,” see, e.g., TEX.R. CIV. P. 22 (“A civil suit in the district
       or county court shall be commenced by a petition filed in the office of the clerk.”), so a “ ‘complaint’ ... is not part of Texas
       civil procedure.” Post at 578. The dissent wonders why we do not “hold that Chapter 150 is dead letter because it applies
       only to the filing of a ‘complaint’, which is certainly not a ‘petition.’ ” Post at 578. The absurdity doctrine answers that
       question. To construe section 150.002 of the Texas Civil Practice & Remedies Code so that it does not apply to any suit
       filed in Texas courts would present the kind of “exceptional” result that would qualify as “absurd.” At a minimum, it would
       completely nullify the statute as to all such suits, and we cannot “lightly presume that the Legislature may have done
       [such] a useless act.” Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 485 (Tex.1998). We therefore
       construe the term “complaint” to mean “petition,” contrary to its common meaning, but we do so because the context of
       the term within the statute as a whole compels that result, not because we think doing so promotes a better public policy
       or would be more effective in promoting what we assume to be the statute's purpose.
18     The dissent suggests that section 150.002(c) alleviates any such time-crunch issues because the “time may be extended
       by motion or agreement.” Post at 580. The “such time” to which this provision refers, however, appears to be the thirty-
       day extension that subsection (c) grants for cases “in which the period of limitation will expire within 10 days of the date
       of filing and, because of such time constraints, the plaintiff has alleged that [a certificate of merit] could not be prepared.”
       TEX. CIV. PRAC. & REM.CODE § 150.002(c). Although the parties do not present, and we do not decide, that issue here,
       it at least appears that subsection (c)'s justice-based extension is available only when the plaintiff files the action within 10
       days before limitations expires. If that is so, then subsection (c) would not be nearly as adequate as the dissent suggests.
1      JUSTICE LEHRMANN does not join the plurality opinion, but joins the remainder of this concurrence.
2      N.Y. Trust Co. v. Comm'r of Internal Revenue, 68 F.2d 19, 20 (2d Cir.1933) (L. Hand, J.).
3      TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 441 (Tex.2011).
4      ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 167 (2012).
5      Frank H. Easterbrook, Text, History, and Structure in Statutory Construction, 17 HARV. J.L. & PUB. POL'YY 61, 67 (1994).
6      Id. at 64 (emphasis in original).
7      Combs v. Health Care Servs. Corp., 401 S.W.3d 623, 630 (Tex.2013).
8      Roccaforte v. Jefferson Cnty., 341 S.W.3d 919, 928 (Tex.2011).
9      Combs, 401 S.W.3d at 631.
1      442 S.W.3d 265, 2014 WL 2994622 (Tex.2014).
2      Unless otherwise indicated, all statutory references are to the Texas Civil Practice and Remedies Code.
3      TEX. CIV. PRAC. & REM.CODE § 150.002(a) (“In any action or arbitration proceeding for damages arising out of the
       provision of professional services by a licensed or registered professional, the plaintiff shall be required to file with the
       complaint an affidavit of a third-party licensed architect, licensed professional engineer, registered landscape architect,
       or registered professional land surveyor who: (1) is competent to testify; (2) holds the same professional license or
       registration as the defendant; and (3) is knowledgeable in the area of practice of the defendant and offers testimony based
       on the person's: (A) knowledge; (B) skill; (C) experience; (D) education; (E) training; and (F) practice.”); § 150.002(b)
       (“The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any,
       or other action, error, or omission of the licensed or registered professional in providing the professional service, including
       any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual
       basis for each such claim.”); § 150.002(c) (“The contemporaneous filing requirement of Subsection (a) shall not apply



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

       to any case in which the period of limitation will expire within 10 days of the date of filing and, because of such time
       constraints, the plaintiff has alleged that an affidavit of a third-party licensed architect, licensed professional engineer,
       registered landscape architect, or registered professional land surveyor could not be prepared. In such cases, the plaintiff
       shall have 30 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on
       motion, after hearing and for good cause, extend such time as it shall determine justice requires.”); § 150.001(1–a) (“
       ‘Licensed or registered professional’ means a licensed architect, licensed professional engineer, registered professional
       land surveyor, registered landscape architect, or any firm in which such licensed or registered professional practices,
       including but not limited to a corporation, professional corporation, limited liability corporation, partnership, limited liability
       partnership, sole proprietorship, joint venture, or any other business entity.”).
4      TEX.R. CIV. P. 38(a) (“At any time after commencement of the action a defending party, as a third-party plaintiff, may
       cause a citation and petition to be served upon a person not a party to the action who is or may be liable to him or to
       the plaintiff for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the
       service if he files the third-party petition not later than thirty (30) days after he serves his original answer. Otherwise, he
       must obtain leave on motion upon notice to all parties to the action.”).
5      Ante at 562 (“We limit our analysis to the words of the statute and apply the plain meaning of those words ‘unless a
       different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.’ ”); id. at
       563 (“Chapter 150 does not define the terms ‘plaintiff’ or ‘action,’ so we must give them their common, ordinary meaning
       unless the statute clearly indicates a different result.”).
6      Ante at 564.
7      Ante at 564.
8      Ante at 564.
9      Ante at 565.
10     Ante at 564 n. 11; see TEX.R. CIV. P. 85 (“The original answer ... may present a cross-action....”).
11     Ante at 565.
12     Ante at 569.
13     Ante at 569.
14     Ante at 563.
15     Ante at 567.
16     Ante at 566 & n. 14; see TEX. CIV. PRAC. & REM.CODE § 74.351(c) (“If the claimant does not receive notice of the
       court's ruling granting the extension [to file an expert report] until after the 120–day deadline has passed, then the 30–
       day extension shall run from the date the plaintiff first received the notice.”).
17     Ante at 568 n. 15.
18     Ante at 569 n. 17.
19     See Rules and Procedures, AMERICAN ARBITRATION ASSOCIATION, https://www.adr.org/aaa/faces/rules (last visited
       July 1, 2014) (no reference in rules to “plaintiff”); Code of Arbitration Procedure, FINANCIAL INDUSTRY REGULATORY
       AUTHORITY, http://www.finra.org/Arbitration AndMediation/Arbitration/Rules/CodeofArbitrationProcedure/ (last visited
       July 1, 2014); Rules of the Judicial Arbitration and Mediation Services, available at ADR Clauses, Rules, and Procedures,
       JAMS, http://www.jamsadr. com/rules-clauses/ (last visited July 1, 2014); Arbitration Rules, WORLD INTELLECTUAL
       PROPERTY ORGANIZATION, http://www.wipo. int/amc/en/arbitration/rules/newrules.html (last visited July 1, 2014);
       ICC Rules of Arbitration, INTERNATIONAL CHAMBER OF COMMERCE, http://www. iccwbo.org/products-and-services/
       arbitration-and-adr/arbitration/icc-rules-of-arbitration (last visited July 1, 2014); Rules and Procedures, INTERNATIONAL
       CENTRE FOR DISPUTE RESOLUTION, https://www.icdr. org/icdr/faces/i_search/i_rule? (the international division of
       AAA).
20     Ante at 566.
21     Supra note 567.
22     Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex.1979).
23     Ante at 574.
24     Ante at 575.
25     A defendant sued on Monday has 21 days in which to answer, TEX.R. CIV. P. 15, and 30 more days in which to file a
       third-party petition as a matter of right, TEX.R. CIV. P. 38.
26     Ante at 570.
27     Ante at 568 n. 15.



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Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (2014)
57 Tex. Sup. Ct. J. 1005

28     TEX. CIV. PRAC. & REM.CODE § 71.051(e).
29     Id. § 71.051(h)(2) (counterclaimants and cross-claimants are also excluded).
30     ANTONIN SCALIA & BRYAN GARNER, READING LAW 20 (2012).
31     Id. at 63.
32     JOSEPH HELLER, CATCH–22 425 (Dell ed.1985) (1961).


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         19
Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)




                      334 S.W.3d 16
                 Court of Appeals of Texas,                                                    OPINION
                           Dallas.
                                                                     Opinion by Justice FRANCIS.
   Thomas LEE, Helen Wilems, Individually and as
                                                                     Two competing lawsuits arising out of a fatality collision
  Representative of the Estate of Felicia Marie Lee,
                                                                     were filed in district courts in Dallas and Madison
  Deceased, Hartford Casualty General Agency, Inc.,                  counties. Both trial courts asserted dominant jurisdiction.
  Southern County Mutual Insurance Co., Copart of                    This interlocutory appeal comes to us on an agreed order
  Houston, Inc., Copart of Texas, Inc., and Houston                  on a controlling question of law. See TEX. CIV. PRAC. &
    Copart Salvage Auto Auctions, LP, Appellants,                    REM.CODE ANN. § 51.014(d) (Vernon 2008). The issue
                          v.                                         presented is: “Under the ‘relation-back’ and/or the ‘first-filed’
          GST TRANSPORT SYSTEM, LP,                                  doctrine(s), which is the court of dominant jurisdiction?”
          and Henry Daneford, Appellees.                             To answer the issue, we must decide whether the relation-
                                                                     back doctrine, embodied in section 16.068 of the Texas Civil
        No. 05–08–00118–CV.             |   Oct. 1, 2008.            Practice and Remedies Code, applies to a presuit discovery
                                                                     petition when determining which lawsuit was filed first. For
Synopsis                                                             reasons set out below, we conclude it does not. Consequently,
Background: Northbound motorist and his employer                     we conclude the Dallas County case was the first-filed suit
brought action against southbound motorist, passenger's              and affirm the trial court's order denying abatement.
mother, individually and as representative of her daughter's
estate, insurance companies, and salvage company, alleging           Felicia and Thomas Lee were traveling south on Interstate
southbound motorist was negligent in fatal car accident.             45 in Madison County when Thomas Lee lost control of his
Passenger's mother filed a competing lawsuit against                 car, crossed the median, and collided with a northbound GST
northbound motorist and his employer in another county. The          Transport Systems tractor-trailer *18 truck driven by Henry
14th Judicial District Court, Dallas County, Mary Murphy,            Daneford. Felicia Lee was killed on impact. Six weeks later,
J., denied mother's plea to abate and asserted dominant              on October 10, 2006, Felicia's mother, Helen Wilems, filed a
jurisdiction. Mother appealed.                                       rule 202 petition in the 12th Judicial District Court in Madison
                                                                     County to take oral depositions of several GST employees
                                                                     and others to investigate a potential claim and for use in an
[Holding:] The Court of Appeals, Molly Francis, J., held that        anticipated suit by Wilems. See TEX.R. CIV. P. 202. The
“amended petition” filed by mother in the competing lawsuit          trial court granted the request and ordered the depositions of
did not relate back to presuit discovery petition filed earlier      several GST employees, including Daneford.
by mother in that suit, and thus the present suit was filed first,
giving the court dominant jurisdiction.                              One week later, on December 5, 2006, GST and Daneford
                                                                     filed a lawsuit in the 14th Judicial District Court in Dallas
                                                                     County against Thomas Lee; Wilems, individually and
Affirmed.                                                            as representative of her daughter's estate; two insurance
                                                                     companies; and the salvage company with possession of the
                                                                     Lees' vehicle. GST and Daneford alleged Thomas Lee, a
Attorneys and Law Firms                                              Dallas County resident, was negligent in the accident and
                                                                     sought damages for injuries to Daneford and property damage
 *17 Braden W. Sparks, Braden W. Sparks, P.C., Dallas, TX,
                                                                     to the tractor-trailer rig. They also sought injunctive relief
for Appellant.
                                                                     against all the defendants to preserve the vehicle driven by
E. John Gorman, Ronald L. Bair, Bairhilty, PC, Houston, TX,          Thomas Lee.
for Appellee.
                                                                     Wilems then filed a “First Amended Petition” in Madison
Before Justices MOSELEY, RICHTER, and FRANCIS.                       County under the same cause number as the presuit discovery
                                                                     petition, alleging a wrongful death claim against GST and


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Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)


Daneford. Both sides filed pleas to abate or dismiss the            Raja, 216 S.W.3d 404, 407 (Tex.App.-Eastland 2006, orig.
competing lawsuit in the respective county, arguing they were       proceeding); Texacadian Energy, Inc. v. Lone Star Energy
the first to file suit. In her plea in Dallas County, Wilems        Storage, Inc., 829 S.W.2d 369, 372 (Tex.App.-Corpus Christi
argued the filing of her wrongful death claim in Madison            1992, writ denied).
County related back to the date of the filing of her rule 202
petition, making her suit the first filed. Ultimately, both trial  [6] At the time GST and Daneford filed their lawsuit in
courts denied the pleas to abate and/or dismiss and, in their     Dallas County on December 5, 2006, Wilems had not brought
orders, asserted dominant jurisdiction. This appeal addresses     any cause of action arising from the collision. Rather, she
the Dallas County order denying Wilems's plea in abatement.       had sought presuit discovery to investigate facts relating to
                                                                  a potential claim. Consequently, the only issue before the
 [1] [2] We review the trial court's action in granting or Madison County district court at that time was whether to
denying a plea in abatement using an abuse of discretion          allow such discovery; it had not been asked to adjudicate any
standard. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248         claims arising from the collision.
(Tex.1988). The trial court abuses its discretion when it acts
in an unreasonable and arbitrary manner, or without reference     Nevertheless, Wilems argues her amended pleading (filed
to any guiding rules or principles. See Downer v. Aquamarine      after the Dallas County suit) related back to the date of
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).               the filing of the rule 202 petition. Relying on rules of
                                                                  civil procedure 62 through 65, she argues that her amended
 [3] [4] As a rule, when cases involving the same subject petition filed in the same court under the same cause number
matter are brought in different courts, the court with the first- superceded and supplanted her original rule 202 petition.
filed case has dominant jurisdiction and should proceed, and      Then, relying on section 16.068 of the Texas Civil Practice
the other case should abate. Perry v. Del Rio, 66 S.W.3d          and Remedies Code, she argues that because the pleading was
239, 252 (Tex.2001). The obvious reasons for abatement            amended, it related back to the date of the original filing on
are conservation of judicial resources, avoidance of delay,       October 10, 2006, rendering the Madison County suit the first
and “comity, convenience, and the necessity for an orderly        filed.
procedure in the trial of contested issues,” or, in other words,
“to prevent races from court to court by vigilant counsel.”       We do not disagree that an amended pleading supersedes
Id. The first-filed rule also has several justifications, both    and supplants earlier pleadings. TEX.R. CIV. P. 65; Lee v.
jurisprudential and pragmatic. The jurisprudential reason is      Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.).
that once a matter is before a court of competent jurisdiction,   And whether it is appropriate to allege a lawsuit for the first
“its action must necessarily be exclusive” because it is          time in an “amended petition” in the same cause number as a
“impossible that two courts can, at the same time, possess the    rule 202 petition is not an issue we need to address. Even if
power to make a final determination of the same controversy       appropriate, we do not agree that the relation-back doctrine, as
between the same parties.” Id. A pragmatic justification for      embodied in section 16.068, can be read in this case to allow
the rule is efficiency in that proceedings earlier begun may be   the “amended pleading” to relate back to the filing date of the
expected to be earlier concluded. Id. A final justification is    rule 202 petition.
fairness-in a race to the courthouse, the winner's suit should
have dominant jurisdiction. Id. 1                                  [7] The relation-back doctrine, statutorily defined in section
                                                                  16.068, originated as an equitable remedy designed to
 *19 [5] Rule 202 allows a person to petition the court effectuate justice. Lovato v. Austin Nursing Ctr., Inc., 113
for an order authorizing the taking of an oral and written        S.W.3d 45, 55 (Tex.App.-Austin 2003), aff'd, 171 S.W.3d 845
deposition to either perpetuate the testimony for use in an       (Tex.2005). It is designed to “protect litigants from loss of
anticipated suit or to investigate a potential claim or suit.     their claims by a plea of limitations in cases where that would
TEX.R. CIV. P. 202.1. The proceeding is not a separate,           otherwise occur and therefore should be liberally construed.”
independent lawsuit, but is in aid of and incident to an          Id. Section 16.068 provides:
anticipated suit. Office Employees Int'l Union Local 277 v.
                                                                                If a filed pleading relates to a cause of
Southwestern Drug Corp., 391 S.W.2d 404, 406 (Tex.1965)
                                                                                action, cross action, counterclaim, or
(interpreting predecessor rule); In re Clapp, 241 S.W.3d
                                                                                defense that is not subject to a plea of
913, 917 (Tex.App.-Dallas 2007, orig. proceeding); In re
                                                                                limitation when the pleading is filed, a


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           2
Lee v. GST Transport System, LP, 334 S.W.3d 16 (2008)


                                                                       what it means, and therefore the words it chooses should be
             subsequent amendment or supplement
                                                                       the surest guide to legislative intent.” Id. (quoting Fitzgerald
             to the pleading that changes the facts
                                                                       v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866
             or grounds of liability or defense is
                                                                       (Tex.1999)). If the statute's language is unambiguous, its
             not subject to a plea of limitation
                                                                       plain meaning will prevail. Id.
             unless the amendment or supplement
             is wholly based on a new, distinct, or
                                                                       The plain language of section 16.068 provides that an
             different transaction or occurrence.
                                                                       amended pleading “is not subject to a plea of limitation
TEX. CIV. PRAC. & REM.CODE ANN. § 16.068 (Vernon                       unless the amendment or supplement is wholly based on a
2008) (emphasis added).                                                new, distinct, or different transaction or occurrence.” TEX.
                                                                       CIV. PRAC. & REM.CODE ANN. § 16.068. Thus, even
In urging we apply section 16.068 to the circumstances in              if we accept the argument that the rule and statute share
this case, Wilems asserts the purpose of rule 202 “allows a            similar purposes, the plain language of the statute restricts
party to locate and preserve evidence before a claim is filed,         its operation to negating a “plea of limitation” under the
while limitations requires that it be filed soon enough to allow       circumstances described in the section. Wilems does not
the opposing party to do so while it is still available.” *20          claim that she stands to lose her cause of action on limitations
She then argues that since both the statute and rule “deal with        grounds; rather, her complaint involves a question of where
the passage of time and the preservation of evidence,” the             the lawsuit should be tried. Consequently, section 16.068
relation-back doctrine “should not apply in one but not the            does not apply under the circumstances of this case.
other.”
                                                                 We conclude the lawsuit filed in Dallas County on December
 [8]     [9]    [10] Even if we liberally construe a statute to 5, 2006 was the first filed. Accordingly, the trial court did not
achieve its purposes, we may not enlarge or alter the plain      abuse its discretion in refusing to abate the case.
meaning of its language. Methodist Hosps. of Dallas v. Mid–
Century Ins. Co. of Tex., 259 S.W.3d 358, 360 (Tex.App.-         We affirm the trial court's order denying abatement.
Dallas 2008, no pet.). In construing a statute, our objective
is to determine and give effect to the Legislature's intent.
Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008). We look       All Citations
first to the statute's language to determine that intent, as we  334 S.W.3d 16
consider it a “fair assumption that the Legislature tries to say


Footnotes
1      There are exceptions to the dominant jurisdiction rule; however, in her brief, Wilems expressly states that none of the
       exceptions applies in this appeal.


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

                                                                   comply with city and state ordinances by obtaining necessary
                                                                   permits or demolish the structure. In four issues on appeal,
                  2012 WL 5834855
                                                                   the Lindigs challenge the constitutionality of the building-
    Only the Westlaw citation is currently available.
                                                                   permit-fee ordinance on vagueness grounds and, in addition,
          SEE TX R RAP RULE 47.2 FOR                               complain of the related awards of civil penalties, attorneys'
    DESIGNATION AND SIGNING OF OPINIONS.                           fees, and prejudgment interest. We will reverse the trial
                                                                   court's judgment and render in part and remand in part.
             MEMORANDUM OPINION
              Court of Appeals of Texas,
                       Austin.
                                                                    FACTUAL AND PROCEDURAL BACKGROUND 2
  William L. LINDIG and Peggy L. Lindig, Appellants
                         v.                                        This dispute arose nearly five years ago when the Lindigs
                                                                   refused to pay a $1,000 building-permit fee for “residential
         CITY OF JOHNSON CITY, Appellee.
                                                                   remodeling” construction work on a home they purchased
       No. 03–11–00660–CV.            |     Nov. 14, 2012.         for their daughter's use. In December 2007 the Lindigs
                                                                   applied for a building permit for a residential remodeling
From the District Court of Blanco County, 424th Judicial           project. William Lindig averred that, when he obtained the
District, No. CV06530; Daniel H. Mills, Judge Presiding.           permit application from City Hall, he was told by the City
                                                                   Secretary that he could begin the project without paying a fee.
Attorneys and Law Firms
                                                                   The following month, however, Peter McKinney, the City's
William M. McKamie, Adolfo Ruiz, McKamie Krueger,                  Building Official, acted on the Lindigs' permit application
L.L.P., San Antonio, TX, Bradford E. Bulllock, Russell &           based on concerns about compliance with the City's building
Rodriguez, L.L.P., Georgetown, TX, for Appellee.                   code and the types of construction materials being used on
                                                                   the project. Upon inspecting the project, McKinney informed
Zachary P. Hudler, Zachary P. Hudler, P.C., Johnson City,          William Lindig that there would be a $1,000 permit fee
TX, Mr. Samuel V. Houston, III, The Ford Firm, P.C., San           for the project. 3 McKinney stated that the amount of the
Antonio, TX, for Appellants.                                       fee was based on his determination that the remodeling
                                                                   project should be treated as “new construction” because
Before Chief      Justice   JONES,        Justices   ROSE    and
                                                                   it involved “substantial work,” including some structural
GOODWIN.
                                                                   framing, rewiring, and new plumbing, and would require
                                                                   all but two of the inspections normally required for new
                                                                   construction. Accordingly, McKinney assessed a permit fee
                MEMORANDUM OPINION                                 of $1,000 for new construction in accordance with section 06–
                                                                   015 of the City's Code of Ordinances. The Lindigs refused to
J. WOODFIN JONES, Chief Justice.
                                                                   pay the fee, whereupon the City issued a stop-work order.
 *1 The City of Johnson City sued William L. Lindig and
Peggy L. Lindig, seeking an injunction and civil penalties         When construction continued despite the stop-work order,
after the Lindigs continued to remodel their residential           the City filed suit in Blanco County district court seeking
property in Blanco County after the City issued a “stop work”      injunctive relief against further construction, alleging that the
order based on the Lindigs' failure to obtain a building permit.   Lindigs had refused to obey the City's order to cease all work
The Lindigs counterclaimed, asserting that the building-           until a building permit was issued. SeeTex. Loc. Gov't Code
permit-fee ordinance was unconstitutionally vague on its           Ann. §§ 54.012(1) (municipality may bring civil action for
                                                                   enforcement of ordinance relating to materials or methods
face or as applied to them. 1 On cross-motions for summary
                                                                   used to construct buildings), .016 (West 2008) (injunctive
judgment, the trial court issued a permanent injunction in the
                                                                   relief available upon showing of substantial danger of injury
City's favor and awarded the City $42,000 in civil penalties,
                                                                   or adverse health impact to any person or to property of
$95,077 in attorneys' fees, up to $40,000 in conditional
                                                                   any person other than defendant). The City also sought
attorneys' fees for an appeal, and pre- and post-judgment
                                                                   civil penalties for the Lindigs' continued noncompliance with
interest. The trial court also ordered the Lindigs to either
                                                                   section 06–015 after receiving notice of noncompliance in the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

stop-work order. See id. § 54.017 (West 2008) (authorizing              Up to and including 5000 square feet total area
municipality to recover civil penalties if defendant violates
ordinance after being notified of ordinance's provisions). In           Plan Review and inspections—$1000.000 per house
addition to their counterclaims, the Lindigs asserted a number
of defenses to enforcement of the ordinance. The trial court            5000 square feet and greater in total area
denied the Lindigs' motion for partial summary judgment as
                                                                        $1000.00 per house plus $0.12 per square foot beyond
to the enforceability of the ordinance and granted the City's
                                                                        5000 square feet
traditional motions for summary judgment on the Lindigs'
claims and the City's statutory claims for injunctive relief,           Plan Review re-submittals
civil penalties, and attorneys' fees. The only claims at issue
on appeal, however, are (1) the City's actions for injunctive           $100.00 per re-submittal
relief and civil penalties, and (2) the Lindigs' counterclaim
under the Texas Uniform Declaratory Judgments Act for                   Re–Inspections
a declaration that the City's building-permit-fee ordinance
                                                                        $50.00 each for 2 or more re-inspections
is unconstitutional—both on its face and as applied to the
Lindigs' construction project—because it is impermissibly             B. Commercial Plan Review and Inspections
vague and thus imbues the Building Official with unfettered
discretion to determine the fees to charge for residential-           1. Building Permit Fees for New Construction
remodeling construction.
                                                                      a. $250 + $0.12 cents a square foot
 *2 On appeal, the Lindigs assert that (1) the trial court            b. Fees for tenant finish out and shell buildings will be 75%
erroneously concluded that the City's building-permit-fee                of the above fees
ordinance is enforceable, (2) the trial court erroneously
assessed civil penalties and attorneys' fees based on an              2. Plumbing, Mechanical and Electrical fees for New
unenforceable fee ordinance, (3) even if the fee ordinance is           Construction (each)
enforceable, fact issues precluded summary judgment on the
City's claim for civil penalties and attorneys' fees, and (4) the     a. $80.00 + $.05 cents a square foot
City is not entitled to prejudgment interest either by statute or
                                                                      b. Fees for tenant finish out and shell buildings will be 75%
as equitable relief.
                                                                         of the above fees

                                                                      3. Fees for Additions, Alterations, Repairs, Demolition,
                        DISCUSSION                                       Screening Walls, Retaining Walls and accessory
                                                                         Buildings.
The principal issue on appeal is whether the building-
permit-fee ordinance, section 06–015 of the City's Code of              The following fees shall be charged for small
Ordinances, is unconstitutionally vague on its face or as               construction jobs involving additions, alterations and
applied to the Lindigs in this case. In section 06–015, the City        repairs. Larger projects that involve substantial work
adopted the following fee schedule for building permits:                shall be charged as new construction at the discretion of
                                                                        the Building Official.
  A. Residential Plan Review and Inspections

     Includes plan review and inspections for residential
     structures as detailed in the Johnson City Residential
     Code.
 Value of Construction                                              Permit Fee
 $0.00 to $2,500.00                                                 $85.00
 $2,500.01 to $5,000.00                                             $100.00



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             2
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

 $5,000.01 to $10,000.00                                          $145.00
 $10,000.01 to $25,000.00                                         $210.00
 $25,000.01 to $50,000.00                                         $400.00
 $50,000.01 to $100,000.00                                        $600.00
 $100,000.01 or more                                              $600.00 for the first
                                                                  $100,000.00 + $75 for each
                                                                                                            4
                                                                  $25,000.00 or fraction thereof.

By its plain terms, section (A) of the fee ordinance              the permit fee in this case. The Lindigs contend that section
applies to residential construction, and section (B) applies      06–015 is unconstitutionally vague with regard to the fee
to commercial construction. Section (A) appears to provide        structure applicable to residential remodeling jobs—either on
a flat fee of $1,000 for construction involving homes under       its face or as it has been applied to them—because (1) the fee
5,000 square feet. Section (B), on the other hand, provides       ordinance lacks a fee structure clearly applicable to residential
a sliding fee scale for new commercial construction and           remodeling projects, under either section (A) or section (B),
commercial construction involving additions, alterations,         and (2) there is neither a definition of “substantial work”
repairs, and other non-comprehensive building activities.         nor any guidelines governing the application of that term or
Subsection (B)(3) includes both a cost-based permit-fee           circumscribing the Building Official's discretion to deem a
structure and a grant of authority to the Building Official to    remodeling project to be new construction for purposes of
treat a commercial building project as “new construction”         establishing the applicable permit fee.
if the Building Official determines, in his “discretion,” that
the project “involves substantial work.” The City has also        Ordinances are subject to the same constitutional
adopted a series of international building codes, including the   requirements and construction canons as statutes. Mills v.
“International Residential Code for One- and Two–Family           Brown, 159 Tex. 110, 316 S.W.2d 720, 723 (Tex.1958) (“The
Dwellings” (the “IRC”). Section (A) of the fee ordinance          same rules apply to the construction of municipal ordinances
refers to the IRC regarding the scope of its application. The     as to the construction of statutes.”); cf. Texas Liquor Control
IRC in turn vests the Building Official with “the authority       Bd. v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex.1970) (“A
to render interpretations of [the IRC] and to adopt policies      rule or order promulgated by an administrative agency acting
and procedures in order to clarify the application of its         within its delegated authority should be considered under the
provisions.”                                                      same principles as if it were the act of the Legislature.”).
                                                                  To determine whether a statute is unconstitutionally vague,
 *3 McKinney (the City's Building Official) testified that,       we begin by presuming that the statute is constitutional.
pursuant to the authority granted to him under the IRC,           Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003). The
he construed section (A) of section 06–015 to apply only          party challenging the statute's constitutionality has the burden
to residential new construction but used section (B)(3) as        of showing that the statute fails to meet constitutional
                                                                  requirements. Id. A statute or ordinance is unconstitutionally
a guideline for determining fees for both residential and
                                                                  vague if the persons regulated by it are exposed to risk
commercial remodeling projects. McKinney further testified
                                                                  or detriment without fair warning or if it invites arbitrary
that he exercises discretion to deem some residential remodels
                                                                  and discriminatory enforcement by its lack of guidance for
to be new construction if they “involve substantial work,”
                                                                  those charged with its enforcement. See Comm'n for Lawyer
which results in the application of the fee outlined in section
                                                                  Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998); Attic
(A) rather than use of the (B)(3) cost-based permit fee he
                                                                  Club, 457 S.W.2d at 45; City of Webster v. Signad, Inc.,
would otherwise use as a guideline for setting the fee for a
                                                                  682 S.W.2d 644, 646 (Tex.App.-Houston [1st Dist.] 1984,
commercial project. It is disputed whether McKinney derives
                                                                  writ ref'd n.r.e.). Implicit in this constitutional safeguard is
his authority to do so from subsection (B)(3) or from his
                                                                  the idea that laws must have an understandable meaning and
general authority under the IRC, but it is undisputed that he
                                                                  must set legal standards that are capable of application. City
engaged in the process set forth in subsection (B)(3) to set


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              3
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

of Mesquite v. Aladdin's Castle, Inc., 559 S.W.2d 92, 94                       before the damage has occurred
(Tex.Civ.App.-Dallas 1977), writ ref'd n.r.e.,570 S.W.2d 377                   or the improvement is started, the
(Tex.1978) (per curiam).“It is established that a law fails                    finding shall be provided to the board
to meet the standards of due process if it is so vague and                     of appeals for a determination of
standardless as to leave a governing body free to decide,                      substantial improvement or substantial
without any legally fixed guidelines, what is prohibited in                    damage.
each particular case.”Id. Due process is violated and a law is
invalid if persons of common intelligence are compelled to         Once the Building Official has made the determination
guess at a law's meaning and applicability. Attic Club, 457        required by section R105.3.1.1, the board of appeals
S.W.2d at 45; Pennington v. Singleton, 606 S.W.2d 682, 689         determines whether the value of the proposed work
(Tex.1980); Signad, 682 S.W.2d at 646.                             constitutes “substantial improvement” by applying the
                                                                   following guideline:
 *4 When applying the fair-notice test, courts allow statutes
                                                                               [A]ny       repair,     reconstruction,
imposing economic regulation greater leeway than they allow
                                                                               rehabilitation,       addition,      or
penal statutes. See Pennington, 606 S.W.2d at 689; Signad,
                                                                               improvement of a building or
682 S.W.2d at 646. “A law is not unconstitutionally vague
                                                                               structure, the cost of which equals or
merely because it does not define words or phrases.”Vista
                                                                               exceeds 50 percent of the market value
Healthcare, Inc. v. Texas Mut. Ins. Co., 324 S.W.3d 264,
                                                                               of the building or structure before the
273 (Tex.App.-Austin 2010, pet. denied). Only a reasonable
                                                                               improvement or repair is started. If
degree of certainty is required, id.(citing Pennington, 606
                                                                               the building or structure has sustained
S.W.2d at 689), and the reasonable-certainty requirement
                                                                               substantial damage, all repairs are
“ ‘does not preclude the use of ordinary terms to express
                                                                               considered substantial improvement
ideas which find adequate interpretation in common usage
                                                                               regardless of the actual repair work
and understanding.’”Signad, 682 S.W.2d at 646–47 (quoting
                                                                               performed.
Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 76
L.Ed. 1167 (1932)). Moreover, “the mere fact that the parties      IRC § R112.2.1. The IRC then lists several exclusions from
disagree as to [an ordinance's] meaning does not mean we           the term that provide further guidance in its application.
must necessarily guess at its meaning.”Mills v. Fletcher, 229      Id. In comparison to the “substantial work” standard the
S.W.3d 765, 770 (Tex.App.-San Antonio 2007, no pet.); see          City's Building Official employed in the Lindigs' case, these
Vista Healthcare, 324 S.W.3d at 273.                               provisions provide objective guidelines for applying the
                                                                   term “substantial” to certain residential property requiring
In the present case, there are no guidelines governing the         construction.
application of the “substantial work” standard embodied
in section 06–015 as construed and applied by the City's            *5 As construed and applied to the Lindigs, the ordinance
Building Official. Nor is there any evidence that this phrase      at issue in this case employs language similar to that found
has a peculiar or technical meaning as applied to some trade       to be constitutionally infirm in City of Webster v. Signad,
or science. Rather, the Building Official testified that he        Inc. There, the court considered a vagueness challenge to a
alone makes the determination based on his impressions and         city sign ordinance that provided that any outdoor advertising
experience regarding the scope of the work. Significantly, the     signs could not be rebuilt if there was damage to “any
City does use objective standards in similar circumstances         substantial parts” of the sign. 682 S.W.2d at 645–46. The
in two other parts of its building regulations. Pursuant to        court held that the quoted phrase was fatally vague and
section R105.3.1.1 of the IRC, the determination of whether        violated due process because it did not provide operators
existing buildings in areas prone to flooding are “substantially   of outdoor advertising signs with fair and adequate notice
improved or substantially damaged” is made according to the        as to what sign repairs were permitted or prohibited. Id. at
following standard:                                                647–48.The ordinance provided no definition or guidelines
                                                                   for measuring “substantial parts” of the sign, leaving the
             If the building official finds that the
                                                                   court to conclude that persons of common intelligence
             value of proposed work equals or
                                                                   would be left to guess the ordinance's meaning. Id. at
             exceeds 50 percent of the market
                                                                   648.While the court noted that the words “substantial parts”
             value of the building or structure


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           4
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

are common, they are not self-explanatory. Id. at 647.As          term “substantial work” unconstitutionally vague as applied
the court explained, “Parts of a sign may be simultaneously       to the Lindigs regardless of who is making that determination.
‘substantial’ and ‘insubstantial’ depending on whether the        See Texas Antiquities Comm. v. Dallas Cnty. Cmty. Coll., 554
test used is economic, physical, or functional.”Id. at 648.The    S.W.2d 924, 928 (Tex.1977) (“A vague law impermissibly
court illustrated the uncertainty and ambiguity that arose from   delegates basic policy matters to policemen, judges, and
application of the “substantial parts” standard as follows:       juries for resolution on ad hoc and subjective basis, with
                                                                  the attended [sic] dangers of arbitrary and discriminatory
  If an economic test is used, how expensive must a repair        applications.”(quoting Grayned v. City of Rockford, 408
  be to rise to the level of “substantial”? If a sign is          U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).
  valued at $30,000, is $1,000 in damage “substantial”? If        Although courts recognize that myriad factual situations may
  a physical test is considered, is damage to one pole of         arise, such that statutes can and should be worded with
  a five-pole sign “substantial”? Should “substantial parts”      flexibility, the public must be provided fair notice of what
  of the sign include other than structural parts? Section        is required or prohibited. Vista Healthcare, 324 S.W.3d at
  B(15) of the Ordinance defines a “sign structure” as            273. The “substantial work” standard applied in this case
  “the support, uprights, bracing, and framework of any
                                                                  does not do so and is therefore constitutionally infirm. 5 We
  outdoor advertising sign”; sign panels, readily movable and
                                                                  therefore sustain the Lindigs' first issue and conclude that
  changeable, are not defined as a part of the sign structure.
                                                                  section 06–015 is unconstitutionally vague to the extent it
  Is damage to one or more sign panels therefore to be
                                                                  imposes a new-construction building-permit fee based on the
  considered as damage to a “substantial” part of the sign?
                                                                  Building Official's determination that residential remodeling
  A sign with broken or inoperative lights is not functional
                                                                  construction “involves substantial work” and thus qualifies as
  during nighttime hours, although the cost of repairs is
                                                                  new construction.
  small in comparison with the sign's total cost. From a
  functional perspective, the lights are “substantial parts”
                                                                   *6 Having sustained the Lindigs' first issue, we also sustain
  of the sign, while from a cost perspective they are not.
                                                                  their second, third, and fourth issues relating to the damages
  The same ambiguity arises in numerous similar practical
                                                                  awarded to the City based on the trial court's erroneous
  considerations.... Operators of outdoor advertising signs
                                                                  enforcement of the $1,000 permit fee. With regard to those
  receive no fair and adequate notice from section H(2) of
                                                                  issues, it appears that there remain genuine issues of material
  the Ordinance as to what sign repairs are permitted or
                                                                  fact regarding whether the Lindigs were issued a permit
  prohibited.
                                                                  number; whether the Lindigs violated the building-permit-
Id.                                                               fee ordinance or the IRC by failing to complete the permit
                                                                  application and obtain a permit, failing to comply with the
As in Signad, people of common intelligence do not                stop-work order that referenced the absence of a permit,
have fair notice as to what permit fee is required under          and failing to comply with the IRC both with regard to the
section 06–015 for a residential remodel project. Just as         application process and the materials used in construction;
important, the seemingly boundless discretion vested in the       and whether, when, and how the Lindigs were informed about
Building Official to interpret and apply the term invites         the stop-work order. These issues are distinct from whether
arbitrary and discriminatory application. Cf. Coffee City v.      the Lindigs were required to pay a fee to obtain a permit. 6
Thompson, 535 S.W.2d 758, 763 (Tex.Civ.App.-Tyler 1976,
writ ref'd n.r.e.) (“An ordinance leaving the question of
issuing or denying building permits to the arbitrary discretion
                                                                                        CONCLUSION
or determination of the city secretary without any rule
or standard to follow is invalid.”). The City argues that         We hold that the building-permit-fee ordinance (section
the Building Official's discretion is not unfettered because      06–015 of the City's Code of Ordinances) is void for
citizens have a right to appeal his determinations to the         vagueness as construed and applied to the Lindigs because
City's board of adjustment. The City does not explain             the determination of what residential remodeling projects
how a standardless determination by the Building Official         involve “substantial work,” and thus may be treated as
survives a vagueness challenge merely because an appeal           new construction under the permitting ordinance, lacks
body can review that determination. We conclude that the          standards that are capable of application with a reasonable
absence of reasonable guidelines or standards renders the         degree of certainty. We therefore reverse the trial court's


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            5
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

                                                                    a permit, and failing to comply with the stop-work order.
summary judgment in the City's favor and render judgment
                                                                    Accordingly, we reverse the portion of the trial court's
in the Lindigs' favor on their declaratory judgment claim.
                                                                    summary judgment awarding the City civil penalties and
Specifically, we render judgment that, as applied to the
                                                                    attorneys' fees and remand this cause to the trial court for
Lindigs, section 06–015 is unconstitutionally vague to the
                                                                    further proceedings.
extent it imposes a new-construction-permit fee based on the
Building Official's determination that residential remodeling
construction “involves substantial work” and thus qualifies as
                                                                    All Citations
new construction. However, fact issues remain as to whether
the Lindigs violated the building-permit-fee ordinance by           Not Reported in S.W.3d, 2012 WL 5834855
failing to complete the permit application, failing to obtain


Footnotes
1      The Lindigs' countersuit also included claims against the City's board of adjustment and various City officials, as well
       as additional claims against the City alleging estoppel, civil conspiracy, and an unconstitutional taking. Those claims,
       however, were disposed of in the trial court and are not at issue on appeal.
2      In a previous opinion of this Court, we considered the Lindigs' interlocutory appeal from a trial-court order dismissing
       the Lindigs' claims for want of subject-matter jurisdiction. We affirmed the trial court's judgment with regard to claims
       based on alleged injuries to the public at large but otherwise reversed the judgment and remanded the cause for further
       proceedings. See Lindig v. City of Johnson City, No. 03–08–00574–CV, 2009 WL 3400982, at *6 (Tex.App.-Austin Oct.21,
       2009, no pet.)(mem.op.). The extensive procedural history leading up to the summary-judgment proceedings at issue in
       this appeal were fully set forth in our previous opinion and need not be repeated in their entirety. See generally id. at
       *1–12.In this opinion, we recount the factual and procedural history of the case only to the extent it is pertinent to the
       issues in this appeal.
3      The parties do not dispute that the City required the Lindigs to pay $1,000 in fees for the remodeling project, but the
       evidence is inconsistent regarding whether the permit fee itself was $1,000 or something less. Although Peter McKinney
       testified that the Lindigs were required to pay the $1,000 permit fee applicable to new construction projects, David
       Dockery, the City Manager and City Administrator, testified before the board of adjustment that the $1,000 fee was actually
       composed of an $850 permit fee (calculated by taking the $1,000 permit fee for new construction and subtracting $150
       for two inspections that would not be required for the remodeling project) and adding a $150 “res check fee.” Because
       this factual discrepancy does not alter our analysis, we characterize the fee as a $1,000 permit fee consistent with the
       parties' briefing in this case.
4      Section C of the fee ordinance includes the following “miscellaneous fees,” which are not at issue in this appeal:
             Any Activity listed below shall be charged the following fee associated with the activity.

        Certificate of Occupancy (only charged when no permit         $105.00
        issued for new construction)
        Temporary Certificate of Occupancy (charged for all           $105.00
        temporary certificates of occupancy)
        Fence Permit                                                  $50.00
        In-ground swimming pool                                       $300.00
        Spa or above-ground pool                                      $105.00
        Lawn Sprinkler                                                $75.00
        Construction Trailer                                          $95.00
        Drive Approach                                                $75.00 per approach
        Sidewalk                                                      $75.00 per lot
        Additional Plan Review                                        $75.00 per hour–1 hr min.
        Hourly Rate                                                   $105.00 per hour
5      The City's reliance on Vista Healthcare, Inc. v. Texas Mutual Insurance Co., 324 S.W.3d 264 (Tex.App.-Austin 2010,
       pet. denied), is misplaced. That case is distinguishable from this case in many ways, but to the extent it affirmed the
       constitutionality of the guidelines applicable to reimbursement rates for medical expenditures, it also reaffirmed the settled
       principle that an ordinance must provide fair notice of the applicable standards. Here, there are none.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                6
Lindig v. City of Johnson City, Not Reported in S.W.3d (2012)
2012 WL 5834855

6      Several provisions of the IRC are germane to the issues on remand. Among those provisions are section R105.1 of
       the IRC, which appears to require that a permit be obtained regardless of whether there is a fee for the permit. Section
       R105.1 provides:
            Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the
            occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical,
            gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work
            to be done, shall first make application to the building official and obtain the required permit.
         Section R105.3 of the IRC governs applications for a permit and instructs:
            To obtain a permit, the applicant shall first file an application therefor in writing on a form furnished by the department
            of building safety for that purpose. Such application shall:
         1. Identify and describe the work to be covered by the permit for which application is made.
         2. Describe the land on which the proposed work is to be done by legal description, street address or similar description
            that will readily identify and definitely locate the proposed building or work.
         3. Indicate the use and occupancy for which the proposed work is intended.
         4. Be accompanied by construction documents and other information as required in Section 106.1.
         5. State the valuation of the proposed work.
         6. Be signed by the applicant, or the applicant's authorized agent.
         7. Give such other data and information as required by the building official.
         Upon application for a permit and pursuant to section R105.3.1 of the IRC, the City's Building Official is required to
         review a permit application within a reasonable time, inform the applicant in writing if the application or construction
         documents do not conform to the requirements of pertinent laws, and state the manner in which compliance is lacking.
         The record is not developed as to the extent to which the Lindigs and the City's Building Official complied with these
         provisions.


End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     7
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80


                                                                 Opinion
                     206 S.W.3d 572
                 Supreme Court of Texas.                         Justice JOHNSON delivered the opinion of the Court.

           MACK TRUCKS, INC., Petitioner,                        In this truck accident case the trial court excluded expert
                        v.                                       testimony as to what caused a post-accident fire that burned
         Elizabeth TAMEZ et. al., Respondent.                    the truck and the driver. After excluding the expert testimony
                                                                 because it was not reliable, the trial court granted summary
          No. 03–0526. | Argued Oct. 20,                         judgment. The court of appeals reversed. We hold that the
         2004. | Decided Oct. 27, 2006.                          trial court did not err, reverse the court of appeals' judgment,
         | Rehearing Denied Dec. 22, 2006.                       and render judgment that the plaintiffs take nothing.

Synopsis
Background: Survivors of petroleum tanker driver who died
when his truck burst into flames brought action against the                              I. Background
tanker manufacturer, asserting claims for negligence, strict
                                                                 On October 19, 1996, Abram Tamez was operating a Mack
liability, breach of implied warranty, and misrepresentation.
                                                                 Truck tractor hauling a trailer of crude oil. Tamez was
The 105th District Court, Nueces County, J. Manuel
                                                                 rounding a curve in the road when the tractor and trailer
Banales, J., granted summary judgment for the defendant
                                                                 overturned. A fire erupted and burned the trailer, its cargo,
manufacturer. The survivors appealed. The Corpus Christi–
                                                                 and the tractor. Tamez was able to climb out of the tractor,
Edinburg Court of Appeals, Thirteenth District, 100 S.W.3d
                                                                 but he was badly burned and died as a result of his injuries.
549, reversed and remanded. Tanker manufacturer appealed.

                                                                 As a result of Tamez's death, suit was filed 1 against the
                                                                 tractor's manufacturer, Mack Trucks, Inc., and others. 2
Holdings: The Supreme Court, Phil Johnson, J., held that:
                                                                 The Tamezes alleged that Mack defectively designed,
                                                                 manufactured and marketed the tractor. They claimed that
[1] the Court of Appeals could not consider expert's causation
                                                                 Mack was liable for negligence, gross negligence, strict
testimony from bill of exceptions, and
                                                                 products liability, breach of warranty, and misrepresentation.
                                                                 All five theories were based on the same complaint: diesel
[2] testimony on causation from post-collision fuel-fed fire
                                                                 fuel from the truck's fuel system originated the fire that burned
expert was not admissible.
                                                                 Abram Tamez. Specifically, the Tamezes alleged that the
                                                                 tractor had design and manufacturing defects because (1)
Reversed and rendered.                                           the fuel system was unreasonably prone to fail and release
                                                                 diesel fuel in an environment conducive to ignition and fire;
                                                                 and (2) the tractor had ignition sources *576 such as hot
Attorneys and Law Firms                                          manifolds and electric batteries in areas likely to contain
                                                                 released flammable fluids. The Tamezes also alleged that
*575 Sean E. Breen, Randy Howry, Herman Howry &                  Mack failed to provide warnings about the defects.
Breen, L.L.P., Austin, Robert Lee Galloway, Kellye Ruth
Koehn, Thompson & Knight LLP, Houston, for petitioner.           In connection with its claims against Mack, the Tamezes
                                                                 identified Ronald Elwell as an expert on post-collision, fuel-
John Blaise Gsanger, William R. Edwards, William R.
                                                                 fed fires. Mack moved to exclude his testimony as unreliable
Edwards III, The Edwards Law Firm, L.L.P., Corpus Christi,
                                                                 and moved for summary judgment. Mack asserted multiple
John Gonzales, John Gonzales & Associates, San Antonio,
                                                                 grounds for seeking summary judgment. Some grounds for
David O. Gonzalez, Law Offices of Baldemar Gutierrez,
                                                                 its motion were directed at particular plaintiffs, while some
Alice, Glenn M. Boudreaux, Maryellen Hester, Boudreaux
                                                                 grounds were directed at all the Tamezes. One part of Mack's
Leonard & Hammond, P.C., Houston, for for respondent.
                                                                 motion directed at all the Tamezes was a Rule 166a(i) motion
                                                                 urging that the Tamezes could present no evidence that any



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

alleged defects caused the fire. The Tamezes responded to the      the Tamezes presented no summary judgment evidence of
no-evidence part of Mack's motion, in part, by filing Elwell's     causation and summary judgment was properly granted.
deposition and his expert report. They also later submitted
Elwell's testimony from a bill of exceptions.

                                                                            II. Elwell's Bill of Exceptions Testimony
Pretrial matters, including a Robinson 3 hearing pursuant to
Mack's motion to exclude Elwell's testimony, were scheduled         [1] Mack argues that the court of appeals erred by
and heard. During the Robinson hearing Elwell testified. He        considering testimony admitted only for the bill when it
expressed the opinion that the fire was started by the tractor's   reviewed the trial court's exclusion of Elwell's causation
battery, which was located too near the fuel tanks, igniting the   testimony. The Tamezes claim that whether Elwell's bill of
tractor's diesel fuel, which in turn ignited the trailer's cargo   exceptions testimony is considered is not relevant because
of crude oil.                                                      his bill testimony added nothing to his Robinson hearing
                                                                   testimony. Further, in their brief and at oral argument the
The trial court granted Mack's motion to exclude Elwell's          Tamezes disclaim having urged in the court of appeals that
testimony as to causation. The Tamezes later moved the             the trial court erred in (1) holding a Robinson hearing, (2) the
trial court to reconsider its decision. The court denied the       manner in which the hearing was conducted, (3) the timing of
motion but allowed the Tamezes to have Elwell testify again        the hearing, or (4) denying their motion for reconsideration.
to create a bill of exceptions. 4 The court signed an order        Our review of their briefs in the court of appeals confirms the
excluding the causation portion of Elwell's testimony from         Tamezes' position. They do not contend here either that the
being considered as evidence at any trial or hearing because       bill of exceptions testimony was improperly excluded or that
it was not sufficiently reliable. Mack's motion for summary        the trial court erred in denying their motion to reconsider.
judgment was granted.
                                                                   The purpose of a bill of exceptions is to allow a party to make
The court of appeals reversed the summary judgment,                a record for appellate review of matters that do not otherwise
concluding that the trial court abused its discretion              appear in the record, such as evidence that was excluded.
                                                                   TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); see also
in excluding Elwell's causation testimony, 5 and also
                                                                   In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex.1998). The
concluding that Elwell's testimony provided some evidence
                                                                   court of appeals' opinion indicates that it considered Elwell's
of causation. The court of appeals' opinion indicates that in
                                                                   bill of exceptions testimony in evaluating the admissibility
reaching its decision it considered Elwell's testimony from
                                                                   of his opinions even though the trial court did not. See 100
both the Robinson hearing and the bill of exceptions. See 100
                                                                   S.W.3d at 556, 559. As one example, the court of appeals
S.W.3d 549, 556, 559, 561.
                                                                   referenced Elwell's opinion that at least one of the tractor's
                                                                   side fuel tanks became displaced during the rollover and
Mack urges that the trial court correctly excluded Elwell's
                                                                   separated the balance line connecting the two fuel tanks. Id.
testimony on causation, did not abuse its discretion in
                                                                   at 557. The court pointed to Elwell's testimony interpreting
refusing to reconsider that ruling, and properly granted
                                                                   photographic evidence of steel straps which held the tanks as
summary judgment because the Tamezes presented no
                                                                   support for his opinion. Id. The referenced testimony as to
evidence of causation. Mack asserts, among other matters,
                                                                   Elwell's opinion and interpretation of photographic evidence
that the court of appeals erred by (1) considering Elwell's
                                                                   was given as part of his bill of exceptions testimony, but he
causation testimony from both the Robinson hearing and
                                                                   did not give similar testimony during the Robinson hearing.
the bill of exceptions; (2) reversing the trial court's ruling
as to admissibility of Elwell's causation testimony; and (3)
                                                                    [2] Except for fundamental error, appellate courts are not
reversing the summary judgment.
                                                                   authorized to consider issues not properly raised by the
                                                                   parties. See In the Interest of B.L.D., 113 S.W.3d 340,
We conclude that the trial court did not abuse its discretion
                                                                   350–52 (Tex.2003). We have described fundamental error
in excluding Elwell's testimony on causation and that the
                                                                   as those instances in which error directly and adversely
court *577 of appeals erred in considering testimony from
                                                                   affects the interest of the public generally, as that interest
the bill of exceptions in evaluating the trial court's exclusion
                                                                   is declared by the statutes or Constitution of our State, or
of Elwell's causation testimony. We further conclude that
                                                                   instances in which the record affirmatively and conclusively



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

shows that the court rendering the judgment was without              bare opinion will not suffice. Merrell Dow Pharms., Inc. v.
jurisdiction of the subject matter. See McCauley v. Consol.          Havner, 953 S.W.2d 706, 711 (Tex.1997). And, there cannot
Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957).              be “ ‘too great an analytical gap between the data and the
The court of appeals did not classify the trial court's refusal      opinion proffered.’ ” Gammill, 972 S.W.2d at 726 (quoting
to allow the Tamezes to present further evidence and to then         Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512,
reconsider its ruling to exclude Elwell's causation testimony        139 L.Ed.2d 508 (1997)).
as fundamental error, and neither do we. The court of appeals
erred in considering Elwell's causation testimony from the            [6]     [7]    [8]    [9] A trial court has broad discretion in
bill of exceptions without having first determined, pursuant         determining whether expert testimony is admissible. Zwahr,
to properly assigned error, that the trial court erred in refusing   88 S.W.3d at 629. Its ruling will be reversed only if that
to admit the testimony and reconsider its decision to exclude        discretion is abused. K–Mart Corp. v. Honeycutt, 24 S.W.3d
Elwell's causation opinions. Under the record and issues             357, 360 (Tex.2000). Because the party sponsoring the expert
presented to us, we may not consider Elwell's testimony              bears the burden of showing that the expert's testimony is
from the bill of exceptions in determining whether the trial         admissible, the burden of presenting understandable evidence
court erred in excluding Elwell's causation *578 testimony.          that will persuade the trial court is on the presenting party. See
See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 n. 1              Robinson, 923 S.W.2d at 557. When an expert's “processes”
(Tex.2004).                                                          or “methodologies” are obscured or concealed by testimony
                                                                     that is excessively internally contradictory, non-responsive or
                                                                     evasive, a trial court will not have abused its discretion in
                                                                     determining that the expert's testimony is not admissible. See
           III. Reliability of Elwell's Testimony
                                                                     GMC v. Iracheta, 161 S.W.3d 462, 470–72 (Tex.2005).

                   A. Standard of Review

 [3]    [4]     [5] An expert witness may testify regarding                              B. Reliability Factors
“scientific, technical, or other specialized” matters if the
                                                                     The court of appeals noted that Elwell's testimony largely
expert is qualified and if the expert's opinion is relevant and
                                                                     applied his knowledge, training, and experience to the
based on a reliable foundation. TEX. R. EVID. 702; Helena
                                                                     underlying data and that his methodology was not easily
Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001);
                                                                     tested by objective criteria such as identifiable scientific
Robinson, 923 S.W.2d at 556. In determining whether
                                                                     formulas. The court of appeals concluded that under such
expert testimony is reliable, a court should examine “the
                                                                     circumstances *579 the reliability of Elwell's opinion is not
principles, research, and methodology underlying an expert's
                                                                     properly measured by a Robinson-factor analysis, but that the
conclusions.” Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623,
                                                                     “analytical gap” test should be applied. 100 S.W.3d at 555–
629 (Tex.2002). When the testimony involves scientific
                                                                     56.
knowledge, the expert's conclusions must be “grounded
‘in the methods and procedures of science.’ ” Robinson,
                                                                     Mack argues that the court of appeals' analysis is flawed.
923 S.W.2d at 557 (quoting Daubert v. Merrell Dow
                                                                     Mack urges that Elwell's inability to demonstrate at least one
Pharms., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125
                                                                     of the Robinson factors, coupled with his inability to eliminate
L.Ed.2d 469 (1993)). Otherwise, the testimony is “no more
                                                                     the crude oil tanker as the source of the fire, rendered Elwell's
than ‘subjective belief or unsupported speculation.’ ” Id.
                                                                     testimony unreliable. The Tamezes, on the other hand, argue
(quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786). We
                                                                     that because Elwell's testimony was based on his training and
have identified several non-exclusive factors that trial courts
                                                                     experience, and not science, application of the analytical gap
should consider when determining the reliability of expert
                                                                     test, as opposed to use of Robinson factors, was appropriate.
testimony involving scientific knowledge. 6 We recognize             They contend that Elwell's opinion was reliable because there
that these factors may not apply when testimony is not               were no analytical gaps in his testimony. See Gammill, 972
scientific, but, rather, involves technical or other specialized     S.W.2d at 726.
knowledge. Gammill v. Jack Williams Chevrolet, 972 S.W.2d
713, 726 (Tex.1998). Even then, however, there must be some          In Gammill we clarified that the list of non-exclusive factors
basis for the opinion to show its reliability. Id. An expert's       listed in Robinson may not be applicable when assessing



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

certain kinds of expert testimony. 972 S.W.2d at 720. We            the underlying theory or methodology has been generally
held that Robinson factors did not apply to the mechanical          accepted as valid by the accident reconstruction and post-
engineer expert under consideration in Gammill, even though         collision fire investigation community; and (5) the non-
his claimed expertise was scientific in nature. Id. at 727. In so   judicial uses that have been made of his methodology. These
holding, however, we did not mean to imply that a trial court       are similar to factors 1, 2, 4, 5 and 6 of those enumerated in
should never consider the Robinson factors when evaluating          Robinson. But, as we have said above, that is not to imply
the reliability of expert testimony that is based on knowledge,     that the trial court was precluded from measuring Elwell's
training or experience, or that the factors can only be applied     methodology by Gammill's analytical gap analysis.
when evaluating scientific expert testimony. We recognized
that the criteria for assessing reliability must vary depending
on the nature of the evidence. Id. at 726.
                                                                                 C. Elwell's Causation Testimony

 [10] The United States Supreme Court has noted that it              [12] At the Robinson hearing, Elwell testified that the fuel
is not possible to “rule out, nor rule in, for all cases and        and battery system on the tractor were designed improperly,
for all time the applicability of the factors mentioned in          and suggested safer designs. He criticized the placement of
Daubert.” Kumho Tire v. Carmichael, 526 U.S. 137, 150,
                                                                    the fuel tanks and also of the batteries' 7 proximity to the fuel
119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Nor can the Court
                                                                    tanks. He criticized certain parts of the fuel system such as the
“now do so for subsets of cases categorized by category
                                                                    crossover or “balance line” hose between the two fuel tanks
of expert or by kind of evidence,” as “[t]oo much depends
                                                                    and the spigots by which the hose was attached to each of
upon the particular circumstances of the particular case at
                                                                    the tanks. He referenced a particular report, which was not
issue.” Id. In Robinson we likewise explained that the factors
                                                                    introduced, which he asserted supported his design critiques
mentioned do not constitute an exclusive list and that the trial
                                                                    and his suggested safer designs.
court's gatekeeping inquiry will differ with each particular
case depending on the “[t]he factors a trial court will
                                                                    Elwell's analysis and conclusion that the fire began with
find helpful in determining whether the underlying theories
                                                                    the fuel system and the battery system were based on
and techniques ... are scientifically reliable.” Robinson, 923
                                                                    the “fire triangle” theory. He explained that under the fire
S.W.2d at 557. Thus, a trial court should consider the factors
                                                                    triangle theory, a post-collision fuel-fed fire such as the one
mentioned in Robinson when doing so will be helpful in
                                                                    under consideration must be analyzed with an eye toward
determining reliability of an expert's testimony, regardless of
                                                                    the ignition, fuel, and oxygen sources that were available.
whether the testimony is scientific in nature or experience-
                                                                    Because the air provided oxygen, his analysis centered on the
based. See Kumho Tire, 526 U.S. at 139, 119 S.Ct. 1167;
                                                                    other parts required to complete the triangle, “the source of
Gammill, 972 S.W.2d at 726.
                                                                    fluids that could be ignited and what would it take to ignite
                                                                    those fluids and fuel, of course, is the primary suspect, either
 [11] In determining reliability, the trial court “should
                                                                    fuel or crude oil in this particular case.”
undertake a rigorous examination of the facts on which the
expert relies, the method by which the expert draws an
                                                                    He did not testify that he inspected the remnants of the
opinion from those facts, and how the expert applies the facts
                                                                    burned tractor and trailer or that he performed or reviewed
and methods to the case at hand.” See Amorgianos v. Amtrak,
                                                                    any accident reconstruction analysis as to how the rollover
303 F.3d 256, 267 (2d Cir.2002). A significant part of the
                                                                    occurred and how different parts of the vehicle would have
trial court's gatekeeper function is to evaluate the expert's
                                                                    been affected or harmed thereby. His Robinson hearing
qualifications, listen to the testimony, view the evidence,
                                                                    testimony did not identify a particular alleged defect of the
and determine which factors and evaluation methodology
                                                                    tractor's fuel system that he concluded was the source of a
are most appropriate to apply. For example, in the present
                                                                    diesel fuel leak that initiated the fire.
case the trial court would have been within its discretion
to measure the reliability of Elwell's testimony, at least in
                                                                    On cross-examination he testified that he had read and relied
part, by considering (1) the extent to which Elwell's theory
                                                                    on “over 5,000” studies on the subject of the causes of post-
had been or could be tested; (2) the extent to which his
                                                                    collision fuel-fed fires. He did not specify any studies that
methodology relied upon his subjective interpretation; (3)
                                                                    supported his conclusion as to the specifics involved in the
the methodology's potential rate *580 of error; (4) whether



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

accident, and none were offered as evidence for the trial court     causation to be reliable, he was required to present some
to consider in evaluating his testimony.                            methodology that reliably supported his opinions that the
                                                                    “fuel” and “ignition” parts of the fire triangle were supplied,
In coming to his conclusion that the fire began with the fuel       respectively, by the tractor's alleged fuel system defects and
system and battery system of the tractor, Elwell asserted that      battery system. He did not do so. The mere fact that the fuel
he relied on several specific factors and facts. Each of the        system had a design that could cause the hoses to separate is
factors and facts he enumerated supported conclusions that          not evidence that the hoses separated in this case.
Tamez was burned by diesel and that the diesel ignited so
quickly that Tamez could not escape.                                Elwell's testimony did no more than set out “factors”
                                                                    and “facts” which were consistent with his opinions, then
Even assuming that what Elwell relied on and classified as          conclude that the fire began with diesel fuel from the tractor.
“factors” and “facts” were true, however, which Mack denies,        The reliability inquiry as to expert testimony does not ask
the factors and facts are merely consistent with diesel fuel        whether the expert's conclusions appear to be correct; it asks
having been released during the rollover and Tamez having           whether the methodology and analysis used to reach those
been burned by part of the fire fed by the tractor's diesel fuel.   conclusions is reliable. Kerr–McGee Corp. v. Helton, 133
They are not probative evidence that diesel fuel was released       S.W.3d 245, 254 (Tex.2004). The trial court was not required
because of one of the asserted defects in the fuel system or        to accept his opinions at face value just because Elwell was
that it was ignited by the battery system. He did not testify       experienced in examining post-collision fuel-fed fires. See
to having analyzed, tested, or investigated the characteristics     Gammill, 972 S.W.2d at 726 (holding that a court should not
of batteries like the battery in the wrecked tractor to support     admit opinion evidence which is connected to existing data
his *581 opinion that the battery system was involved in            only by the ipse dixit of the expert).
causing the fire. He failed to set out any process by which
he excluded other sources for ignition of the diesel fuel such      We conclude that the trial court did not abuse its discretion
as mechanical sparks which could be generated when parts            when it excluded Elwell's testimony on causation. The court
of a truck make contact with the pavement, or ignition of the       of appeals erred when it determined otherwise.
cargo fuel which in turn could have ignited the diesel fuel. See
Gammill, 972 S.W.2d at 728; see also Robinson, 923 S.W.2d
at 559 (noting that an expert who is trying to find a cause
                                                                                   IV. The Summary Judgment
of something should carefully consider alternative causes).
For example, when Elwell was asked during the Robinson              Mack moved for summary judgment on multiple grounds,
hearing why he concluded that the fire originated with the          including the ground that there was no evidence Mack's fuel
fuel and battery systems instead of with the crude oil cargo,       system design was a producing or proximate cause of Tamez's
his response was that “if [crude oil] remains to be burned,         injuries. The Tamezes contend that even without Elwell's
that after five or ten or fifteen minutes, then that's not the      testimony as to causation, they presented sufficient evidence
fuel that started the fire.” He did not explain any investigation   to survive summary judgment.
or research that supported such a conclusion. He did not
elaborate on the amount of crude that was in the trailer when
the wreck occurred, calculate the amount of time it would take
the cargo to burn, or discuss or compare the relative ease of                          A. Standard of Review
ignition or flash points of the crude and diesel fuel. He did not   A summary judgment motion pursuant to TEX. R. CIV. P.
address any analysis or process by which he concluded that          166a(i) is essentially a motion for a pretrial directed verdict.
some part of a trailer of crude oil would continue to burn for      See *582 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
several minutes only if it was ignited by, rather than being the    706, 711 (Tex.1997). Once such a motion is filed, the burden
ignitor of, diesel fuel from the tractor's fuel system.             shifts to the nonmoving party to present evidence raising
                                                                    an issue of material fact as to the elements specified in
In sum, Elwell did not testify at the Robinson hearing to           the motion. Id.; W. Invs., Inc. v. Urena, 162 S.W.3d 547,
a methodology by which he reached the conclusions as                550 (Tex.2005). We review the evidence presented by the
to the fire having been caused by defects in the tractor's          motion and response in the light most favorable to the party
fuel and battery systems. In order for Elwell's testimony on        against whom the summary judgment was rendered, crediting



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

evidence favorable to that party if reasonable jurors could,         fuel, that Tamez was burned by diesel fuel because Tamez
and disregarding contrary evidence unless reasonable jurors          was coated with a shiny, oily substance and did not smell like
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827         crude oil; (2) a notation by Mack's accident reconstruction
(Tex.2005); Johnson v. Brewer & Pritchard, P. C., 73 S.W.3d          expert noting a diesel fuel spill on the road; (3) a statement by
193, 208 (Tex.2002).                                                 Elwell that the design of the system was such that if there was
                                                                     any significant dislodgement of the fuel tanks, the fuel line
                                                                     would separate; 8 (4) a statement by Mack's expert witness
                         B. Causation                                that it was possible that a battery cable found in the tractor
                                                                     had arced and ignited the fire, although *583 the witness
Producing or proximate cause is an element of all                    ultimately concluded that the crude-oil cargo caused the fire;
of the Tamezes' claims, which included negligence,                   and (5) an eyewitness's statement implying that it took the fire
misrepresentation, breach of warranty, and design,                   a short period of time to reach Tamez, who exited and crawled
manufacturing, and marketing defects. Causation-in-fact is           away from the tractor after the accident.
common to both proximate and producing cause, including
the requirement that the defendant's conduct or product be a          [14]     [15]      [16]     Proof other than expert testimony
substantial factor in bringing about the injuries in question.       will constitute some evidence of causation only when a
See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775                layperson's general experience and common understanding
(Tex.1995).                                                          would enable the layperson to determine from the evidence,
                                                                     with reasonable probability, the causal relationship between
All the Tamezes' theories regarding the fire's cause                 the event and the condition. Expert testimony is required
were based on allegations that the tractor's fuel system             when an issue involves matters beyond jurors' common
was defectively designed and manufactured so as to be                understanding. See Alexander v. Turtur & Assocs., 146
unreasonably prone to fail and release flammable fluids in           S.W.3d 113, 119–20 (Tex.2004). Whether expert testimony
an environment conducive to ignition and fire; that such             is necessary to prove a matter or theory is a question of law.
defects caused the release of diesel fuel; and that a defectively    See FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84,
designed and placed ignition source then caused ignition of          89 (Tex.2004). In Fulgham we held that expert testimony
the released diesel.                                                 was necessary to establish the standard of care for connecting
                                                                     refrigerated trailers to tractors and for the frequency and type
 [13] To survive summary judgment on their theory that               of inspection and maintenance of such connectors, because
a defect in the tractor's fuel system was the cause of               those matters were not within the general experience and
the fire, the Tamezes were required to present more than             common understanding of laypersons. Id. at 91; See also
evidence of a fuel leak. See Ford Motor Co. v. Ridgway,              Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-
135 S.W.3d 598, 600–01 (Tex.2004) (affirming summary                 Amarillo 1999, pet. denied) (holding that performance of
judgment because the plaintiffs' evidence “establishe[d] only        mechanical work on turbine aircraft engines is not within the
that a fire occurred, and [the plaintiffs' expert] could say no      experience of a layperson).
more than that he ‘suspects' the electrical system caused the
fire”). They had to present evidence that (1) the diesel fuel         [17]    A lay juror's general experience and common
leaked because of one or more of the alleged defects, and (2)        knowledge do not extend to whether design defects such as
the leak caused by the defect was the ignition point for the fire.   those alleged in this case caused releases of diesel fuel during
See Iracheta, 161 S.W.3d at 470 (holding that the possibility        a rollover accident. See Nissan Motor Co., 145 S.W.3d at
that the fire occurred in the manner the plaintiff suggested is      137 (stating that we have consistently required competent
not enough to support the jury's findings); Nissan Motor Co.         expert testimony and objective proof that a defect caused the
v. Armstrong, 145 S.W.3d 131, 137 (Tex.2004).                        condition complained of). Nor would a lay juror's general
                                                                     experience and common knowledge extend to determining
The Tamezes point to several parts of their summary                  which of the fire triangle's fuel sources, diesel from the
judgment evidence that they say are sufficient, individually         tractor or crude from the tanker, would have first ignited,
or collectively, to defeat summary judgment: (1) an accident         or the source for the first ignition. That part of Elwell's
witness's “personal assumption,” based on his averred                testimony that was properly before the trial court and the
experience with and ability to recognize the smell of diesel         testimony of other experts as to the amount of time they



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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

                                                                    See Wal–Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
spent in studying, investigating, and working in the field of
                                                                    (Tex.1998).
post-collision, fuel-fed fires demonstrated the intricacies of
such subject matter. Issues such as those regarding the fire's
                                                                     *584 [19] The plaintiffs also rely on circumstantial
cause(s) present matters beyond the general understanding
                                                                    evidence suggesting that the fire quickly reached Tamez. That
and common knowledge of lay jurors. Proof of causation in
                                                                    evidence is consistent with the Tamezes' theory that the fire
this case also required expert testimony.
                                                                    originated with fuel from the tractor's diesel fuel system. But,
                                                                    such evidence does not make it more likely than not that the
The summary judgment evidence presented by the Tamezes
                                                                    battery or some other allegedly improperly located ignition
did not contain proof that any of the possible sources of diesel
                                                                    source ignited diesel from the tractor, as opposed to other
fuel was more likely than any other, or more likely than the
                                                                    possible sources of ignition such as the cargo of crude oil.
crude oil cargo, to have been the source of liquids that first
                                                                    Accordingly, the circumstantial evidence is not sufficient to
caught fire. Accordingly, there is no evidence that the source
                                                                    prevent summary judgment. Id.
was one of the alleged fuel system defects. Kindred v. Con/
Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

 [18] The Tamezes also alleged that several ignition sources                                 V. Conclusion
were located in areas likely to contain diesel that would be
released in a wreck. The Tamezes point to expert testimony          The plaintiffs produced no evidence that the alleged defects
that an arced battery cable found in the tractor could possibly     of the Mack tractor were a cause-in-fact of injuries to Abram
have ignited the fire. But, testimony that the battery or its       Tamez. Because causation is a required element of each of
cable could possibly have ignited the fire is not evidence that     the Tamezes' claims, the trial court properly granted summary
it probably did so. The expert who provided this testimony          judgment. Accordingly, we reverse the court of appeals'
could not determine whether the cable arced before the fire         judgment and render judgment that the plaintiffs take nothing.
was ignited or as it was being burned by an otherwise-ignited
fire. As proof of what caused the fire, such evidence is
                                                                    All Citations
speculative and is insufficient to prevent summary judgment.
                                                                    206 S.W.3d 572, 50 Tex. Sup. Ct. J. 80


Footnotes
1      Elizabeth Tamez filed suit. Elsa Guerrero, Rosendo Tamez, Sr., Dora Tamez, Rosa Elvia Gonzales, Donna Kim Cantu,
       and Terrie L. Zay intervened. Rosa subsequently nonsuited. For ease of reference all the claimants will be referred to
       collectively as “the Tamezes” or “the plaintiffs.”
2      Other defendants were Fruehauf Trailer Corporation, Norco Crude Gathering, Inc., Glitsch Canada, Ltd., and Snyder
       Tank Corp. The claims against those defendants were either nonsuited or settled and were severed from the claims
       against Mack.
3      E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995).
4      An offer of proof is sometimes referred to as a bill of exceptions. See TEX.R. EVID. 103(a)(2); TEX.R.APP. P. 33
       (comment to 1997 change). As the court of appeals and the parties refer to the offer of proof in this case as a bill of
       exceptions, we will, also.
5      After Elwell's expert testimony was excluded by the trial court, the Tamezes obtained testimony from another expert
       witness, Douglas Holmes. Mack moved to exclude Holmes's testimony, and the trial court orally granted the motion. The
       court of appeals upheld the exclusion of Holmes's testimony. 100 S.W.3d 549, 559. The Tamezes do not challenge the
       court of appeals' ruling as to Holmes.
6      Id. (identifying the following considerations regarding reliability of scientific testimony: (1) the extent to which the theory
       has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3)
       whether the theory has been subjected to peer review and/or publication; (4) the technique's potential rate of error; (5)
       whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community;
       and (6) the non-judicial uses that have been made of the theory or technique).
7      The record is not clear whether the tractor had one battery or two.




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Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006)
50 Tex. Sup. Ct. J. 80

8      Elwell's testimony on design defect, as opposed to his testimony on causation, was not excluded.


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           8
Mack v. Moore, 669 S.W.2d 415 (1984)


                                                                attorney's fees incurred in the collection and prosecution of
                                                                this case. The case was tried to the court. The appellees
                     669 S.W.2d 415
                                                                defended on the basis that all fees incurred had been paid in
                 Court of Appeals of Texas,
                                                                full, and further asserted that the charges alleged by appellant
                   Houston (1st Dist.).
                                                                were not in accordance with their set fee of $90.00 per month.
       Bruce R. MACK d/b/a Mace & Mack, an                      The appellant presented his case-in-chief and rested, and the
      association of attorneys at law, Appellant,               appellees rested immediately thereafter, calling no witnesses
                           v.                                   to controvert appellant's claim.
     Andy and Wilma MOORE d/b/a Andy Moore
                                                                The trial court entered judgment for appellant, finding that
      & Son Aeronautical Specialties, Appellees.
                                                                the appellees requested the services be performed, that the
       No. 01–83–0549–CV.          |   April 12, 1984.          services were performed to the satisfaction of appellees,
                                                                that there was no agreement whereby appellees would pay
Attorney brought a suit upon a sworn account for accounting     appellant a set fee per month, and that the appellees had
and tax services performed for clients and for attorney fees    agreed to pay the reasonable value of the services which were
incurred in selection and prosecution of case. The County       performed. The court then rendered judgment for appellant,
Civil Court at Law No. 3, Harris County, Hugo Touchy, J.,       finding that the reasonable value of the appellant's services
entered judgment awarding fees for less than those requested,   was $275.00 per month, and the amount still due and owing
and attorney appealed. The Court of Appeals, Bass, J., held     by appellees was $1,035. Additionally, the trial court awarded
that: (1) where three expert witnesses testified that $4,865    appellant one third of the final judgment, or $300.00, in
was reasonable value of attorney's services and client did      attorney's fees. The appellant appeals on the points that trial
not impeach expert witnesses on cross-examination, the only     court's valuation of both his services and his attorneys fees
reasonable conclusion to be drawn from the evidence was that    was erroneous.
$4,865 was the reasonable value of services rendered, and
when that amount, less $1,715 for prior payments by clients,    The appellant, Bruce R. Mack, is a licensed C.P.A. and
left a balance of $3,150, that was amount which attorney        tax attorney, with an L.L.M. in taxation. His tax experience
should have been awarded in judgment, and (2) where trial       includes numerous years as an agent and regional supervisor
court in its conclusions of law implied that the usual and      for the I.R.S. and as an auditor with a large public accounting
customary attorney fees were one-third of the amount of         firm.
the judgment, the award of $300 in attorney fees would be
increased to $1,050.                                            In January of 1981, the appellees retained the appellant to
                                                                perform certain tax work in connection with their business,
Reversed and rendered.                                          including the reconciliation of their prior bank accounts and
                                                                employee payroll tax records, and the preparation and filing
                                                                of their income tax return for 1980. In connection with this
Attorneys and Law Firms                                         work, appellant was to review prior years payroll tax returns
                                                                and to amend as necessary, file any and all necessary reports,
*416 Bruce B. Mack, Mace & Mack, Houston, for appellant.
                                                                and then keep appellees' records current through the quarterly
*417 John Gilleland, Houston, for appellees.                    preparation of payroll tax returns, sales tax reports, and the
                                                                monthly preparation of their profit and loss statements.
Before WARREN, COHEN and BASS, JJ.
                                                                Appellant completed the agreed work, preparing all necessary
                                                                returns and delivering this work to the appellees. The degree
                         OPINION                                of difficulty in the preparation of these reports was greatly
                                                                enhanced by various errors within the prior reports and bank
BASS, Justice.                                                  statements. This required the appellant supervisory employee
                                                                to have several conferences with appellees in an attempt to
This is a suit upon a sworn account, and in the alternative
                                                                reconcile these errors. The appellant personally presented his
for quantum meruit, seeking $3,150.00 in fees for accounting
                                                                final invoice of $4,865.00 to appellees, and explained the
and tax services performed for appellees and $1,950.00 in


                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         1
Mack v. Moore, 669 S.W.2d 415 (1984)


charges as they related to the work which he performed.
Appellees agreed to pay the invoice and further negotiated             3. Plaintiff is entitled to attorney's fees equal to one-third
a set fee of 275.00 per month for future work, including               of the judgment, being $300.00.
the periodic preparation of the company's payroll reports
                                                                        4. Plaintiff's right to collection of such indebtedness is
etc. However, after they had paid appellant $1,715.00, of
                                                                        not barred by limitations.
the invoice, appellees refused to pay the remaining balance,
                                                                  Initially, the appellant contends the trial court erred in not
claiming the bill was paid in full. This action left $3,150.00
                                                                  finding as a fact that the reasonable value of the services he
still due and owing on the account, and the appellant was
                                                                  performed and which were still due and owing to him by the
forced to file suit to collect the balance.
                                                                  appellees was $3,150.00, because there is no evidence upon
                                                                  which to support any other conclusion, or alternatively, the
Trial was to the court, and after judgment for appellant the
                                                                  trial court's finding as to the amount due and owing is against
trial judge, upon proper request, made the following findings
                                                                  the weight of the evidence. In this point of error, appellant
of fact and conclusions of law.
                                                                  combines a “matter of law” point and an “against the great
                                                                  weight” point in one ground of error. In essence, the appellant
                                                                  contends the evidence introduced at trial established the value
                   FINDINGS OF FACT                               of his services due and owing to be $3,150.00, as a matter of
                                                                  law, and asks us to reverse the trial court judgment and render
  1. On or about January 1, 1981, Defendants engaged              judgment for appellant in this amount.
  Plaintiff to perform certain accounting and tax work for
  them.                                                           In the alternative, appellant asserts the finding of the trial
                                                                  court as to the value of his services is so against the great
     2. Defendants had no agreement with Plaintiff for a set
                                                                  weight and preponderance of the evidence as to be manifestly
     sum for the work but *418 were to pay the reasonable
                                                                  unjust, and thus requires a reversal of the judgment and
     value of services rendered.
                                                                  remand of the case for a new trial.
     3. Plaintiff performed the services as reflected on his
     invoices to Defendants.                                       [1] To determine a “no evidence” or “matter of law”
                                                                  point this court must disregard all evidence contrary to the
     4. Defendants were satisfied with the services performed     trial court's finding, and if there is any remaining evidence
     by the Plaintiff.                                            which would support the verdict or judgment, the trial court's
                                                                  judgment must be upheld. If, after the removal of all contrary
     5. The reasonable value of the services performed            evidence this court finds an absence of any evidence which
     by Plaintiff is $2,750.00 (10 months x $275.00) and          would support the verdict or judgment, a contrary conclusion
     Defendants have paid to the Plaintiff $1,715.00 leaving      to the verdict or judgment is required as a matter of law. In
     a balance due of $1,035.00.                                  Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
     6. Plaintiff had to engage John J. Eikenburg, a Texas
                                                                  The finding at issue before this court is the amount of
     attorney, to collect plaintiff's claim.
                                                                  the trial court's award as the reasonable value of the
     7. Plaintiff is entitled to attorney's fees under Article    accounting services which were performed. The direct,
     2226, Texas Revised Civil Statutes.                          positive, uncontroverted evidence as presented by the three
                                                                  experts, including appellant and appellant's ex-employee
                                                                  (the appellees' present accountant) was that the charges as
                CONCLUSIONS OF LAW
                                                                  evidence in the invoices were reasonable charges for the
  1. Defendants are indebted to Plaintiff for the sum of          services which were performed. However, in spite of this
  $1,035.00.                                                      fact the trial court assessed the value of those service at the
                                                                  arbitrary figure of $275.00 per month, the amount the parties
     2. The indebtedness of Defendants to Plaintiff bears         had agreed to for the preparation of reports necessary for the
     interest at the rate of six percent per annum from January   maintenance of their records. This figure did not consider the
     1, 1982, until date of Judgment.                             extensive work required to update and correct appellees' back
                                                                  records, so that they were in a position to be maintained.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
Mack v. Moore, 669 S.W.2d 415 (1984)


                                                                  rendered: the appellant, his ex-employee, the appellees'
 [2]     [3] It is the general rule that since the trier of the present accountant, John Mason, and an independent,
fact is the sole judge of the credibility of the witnesses and    disinterested C.P.A., Patrick Cantrell. Each of these witnesses
the weight to be given their testimony, opinion evidence is       reached the same conclusion, i.e., that the charges as reflected
insufficient to conclusively establish a fact issue at trial, and by the invoice were reasonable. Appellees called no witnesses
thus give rise to a directed verdict or in this case a reversal   to refute this determination nor did they otherwise impeach
and rendition. However, in Teal v. Powell Lumber Co., 262         these witnesses on cross-examination. Therefore, here, as in
S.W.2d 223 (Tex.Civ.App.-Beaumont, 1953, no writ), the            Exxon, supra, the only reasonable conclusion which could
 *419 court applied this test to the trial judge but further      be drawn from the evidence was that stated by appellant's
stated that it is only within the province of court or jury to    experts.
decide conflicting evidence, and where there is evidence on
an issue and no evidence to the contrary, the court or jury       The court, in making its findings of fact, stated that the
has no right to disregard the evidence and decide the issue in    amount owed and agreed by the appellees was the reasonable
accordance with their own wishes. Id at 225. In the present       value of the services which were performed. That reasonable
case, the only evidence presented on this issue supported         value was conclusively shown through expert testimony to
appellant's valuation.                                            have been $4,865.00. That amount, less $1,715.00 for prior
                                                                  payments by the appellees, left a balance of $3,150.00, which
 [4] Furthermore, in Exxon Corporation v. West, 543 S.W.2d is the amount which appellant was entitled to in judgment.
667 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ ref'd, n.r.e.)   Since here, as in Exxon, supra, “it does not appear that the
Chief Justice Evans reviewed the effect of uncontroverted         cause should be remanded for further proceedings in the
expert testimony and its ability to conclusively establish a fact interest of justice or for any other reason,” the judgment of
issue. In support of this court's reversal and rendition, Justice this court should be one of rendition. Exxon, supra, at 674;
Evans stated that while such evidence is generally held not       Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Tex.Civ.App.-
to be binding on the trier of fact if more than one possible      Forth Worth 1960, no writ).
conclusion can be drawn from the facts, it may be regarded
as conclusive if the nature of the subject matter require the     In his second point of error, the appellant asserts the trial
fact finder to be guided solely by the opinion of experts and     courts findings of $300.00 in attorney's fees had no support
the evidence is otherwise credible and free from contradiction    in the evidence and asks this court to reverse and render
and inconsistency.                                                judgment for the stated amount of $1,950.00.

 [5]     [6]   Furthermore, this rule applies even where            [8] [9] The court in its findings of fact stated that appellant
the testifying experts are interested witnesses if their           had the right to recover the reasonable cost of attorneys fees.
testimony is clear, direct, positive, if nothing creates a         Unlike the above expert testimony, there are factors other
reasonable suspicion as to the witness' credibility and if the     than the testimony of expert witnesses which could have been
opposing party could have offered but failed to offer, any         used by the court in its determination of what amount was
evidence in contradiction thereof. This failure to offer such      “reasonable.” Some of these factors which may have been
contrary evidence “constitutes effective corroboration” of         considered by the court are: the complexities *420 of the
the witnesses' testimony. Id. at 678. See also, Collora v.         case, the amount of time spent in preparation, the quality
Navarro, 574 S.W.2d 65 (Tex.1978) stating that testimony           of counsel, and the amount of potential and actual recovery.
by interested lay witnesses may be the basis for a directed        Moreover, the judge would have been familiar with the fees
verdict, where the testimony “pertains to matters reasonably       in this area, and could have drawn upon his own expertise
capable of exact statement, and is clear, direct, positive and     in his decision making. Therefore, since the amount and
internally void of inconsistencies and contradictions, and is      reasonableness of attorney's fees is a question of fact which
uncontroverted either by testimony of other witnesses or by        allows the consideration of various intangibles incapable of
circumstances—in short, when there is nothing to cause any         review by this court, the trial court award cannot be disturbed
reasonable suspicion as to its truth.” Id. at 69.                  absent an abuse of discretion and we do not find such an abuse
                                                                   in the case before this court.
 [7] In the present case, three expert witnesses testified
as to the reasonableness of the charges for the services



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Mack v. Moore, 669 S.W.2d 415 (1984)


                                                                     accordance with the trial court's conclusions of law, and
 [10] Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1984)
                                                                     reflect the corresponding award of attorney's fees of one third
states that the usual and customary fees charged for the type
                                                                     the corrected judgment, or $1,050.
of work performed are presumed reasonable. There was no
testimony introduced stating the usual and customary fees for
                                                                     We accordingly reverse the judgment of the trial court and
this type of action. Furthermore, the court in its conclusions
                                                                     render judgment in the amount of $3,150.00 upon the unpaid
of law implied that the usual and customary fees in this
                                                                     account, and for $1,050.00 for the appellant's attorney's fees.
area are one-third the amount of judgment, and it apparently
was on this basis that the court entered judgment of $300.00
in attorney's fees. Therefore, in light of our disposition of
                                                                     All Citations
appellant's first point of error, the award of $300.00 is patently
incorrect. Therefore, we order the judgment be reformed in           669 S.W.2d 415

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               4
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)


                                                                   concluding it had not properly secured its lien and granting
                                                                   a summary judgment in favor of Mid–Century Insurance
                    259 S.W.3d 358
                                                                   Company of Texas. Asserting four points of error, Methodist
                Court of Appeals of Texas,
                                                                   contends its lien satisfied the requirements of section 55.005
                          Dallas.
                                                                   of the Texas Property Code and Mid–Century was not entitled
      METHODIST HOSPITALS OF DALLAS d/                             to a no-evidence summary judgment. After reviewing the
       b/a Methodist Medical Center, Appellant                     summary judgment record, we conclude Methodist did not
                        v.                                         substantially comply with the requirements of section 55.005.
                                                                   We affirm the trial court's judgment.
            MID–CENTURY INSURANCE
           COMPANY OF TEXAS, Appellee.

        No. 05–07–00897–CV.           |    July 2, 2008.                                          I.

Synopsis                                                           On October 11, 1999, Lori Ward was involved in a car
Background: After hospital filed hospital lien for payment         accident with a person insured by Mid–Century Insurance
of hospital bills accrued by patient injured by third-party in     Company. Ward was taken to Methodist Medical Center
auto accident, and patient received settlement from third-         where she was treated for her injuries. The bill for the medical
party's insurer for the accident, hospital brought action          services and supplies provided to Ward by Methodist was
against the third-party's insurer to enforce the lien. The 289th   $8,656.75.
Judicial District Court, Dallas County, Emily Tobolowsky,
J., 2007 WL 5112362, granted insurer's motion for summary          Ward made a claim with Mid–Century for the damages she
judgment. Hospital appealed.                                       suffered as a result of the accident. Mid–Century evaluated
                                                                   the claim and offered her its policy limits. The claim was
                                                                   settled on September 6, 2000. Mid–Century issued a check
[Holding:] The Court of Appeals, Morris, J., held that             dated September 20, 2000 made jointly payable to Ward
hospital's notice of lien did not substantially comply with        and her attorney, Juan Hernandez. Hernandez testified that
requirements of statute, and, thus, was unenforceable.             someone from his office picked up the check that same day.

                                                                   One day later, on the afternoon of September 21, 2000,
Affirmed.                                                          Methodist filed a written notice of lien for the medical
                                                                   services and supplies provided to Ward. The lien listed Ward
                                                                   as the injured person treated by *360 Methodist. In addition,
Attorneys and Law Firms                                            however, the notice incorrectly listed the date of the accident
                                                                   as October 12, 1999 and stated the person liable for the
*359 Blair Grant Francis, Joe Don Ridgell, Francis, Orr &
                                                                   accident was Ward rather than the third party insured by Mid–
Totusek, L.L.P., Dallas, TX, for Appellant.
                                                                   Century. Finally, the notice incorrectly stated the amount of
Hermon L. Veness, Jr., Carnahan Thomas, L.L.P., Southlake,         the lien as $9,189.29. The lien was filed with the county clerk
TX, for Appellee.                                                  and was made available to the public approximately ten to
                                                                   twelve days later.
Before Justices       MORRIS,        WHITTINGTON,           and
FITZGERALD.                                                        When Methodist discovered that the settlement proceeds from
                                                                   Mid–Century had been disbursed, it filed this suit against
                                                                   Mid–Century and Hernandez to enforce its lien. 1 Mid–
                          OPINION                                  Century moved for a traditional and no-evidence summary
                                                                   judgment arguing that Methodist failed to properly secure its
Opinion by Justice MORRIS.
                                                                   lien as required by section 55.005 of the Texas Property Code.
In this hospital lien case, Methodist Hospitals of Dallas d/b/     Methodist replied and filed a cross-motion for summary
a Methodist Medical Center contends the trial court erred in       judgment arguing that it complied with the requirements of
                                                                   section 55.005 as a matter of law. After considering the


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)


                                                                   statutory notice requirements, Methodist only complied with
motions, the trial court granted Mid–Century's motion for
                                                                   two. Methodist contends its *361 error in stating the date of
summary judgment and denied Methodist's cross-motion for
                                                                   the accident is a minor discrepancy because the actual date
summary judgment. The court ordered that Methodist take
                                                                   of the accident was only an hour and twenty-four minutes
nothing by its claims. This appeal ensued.
                                                                   earlier. There is nothing on the notice to indicate the time
                                                                   of the accident, however. And the date of the accident is a
                                                                   critical component of the notice. Because the lien attaches
                              II.                                  only to a cause of action, judgment, or settlement based on
                                                                   the accident giving rise to the injuries treated by the hospital,
Methodist raises four issues on appeal challenging the trial
                                                                   the date of the accident listed on the notice is crucial. See
court's decision to render summary judgment against it.
                                                                   TEX. PROP.CODE ANN. § 55.003. It is by comparing the
Because we conclude Methodist's third issue is dispositive of
                                                                   date and the name of the responsible party, if known, that one
this appeal, we begin by addressing that issue.
                                                                   can determine whether the accident made the subject of the
                                                                   legal claims is the same as the accident made the subject of
 [1] It its third issue, Methodist contends its notice of
                                                                   the lien. There is nothing on Methodist's notice of lien that
lien substantially complied with the requirements of section
                                                                   would enable someone searching the record to determine that
55.005(b). Section 55.005(b) states that a notice of lien filed
                                                                   the lien was intended to attach to the accident occurring on
by a hospital or emergency medical services provider must
                                                                   an earlier date.
contain: (1) the injured individual's name and address; (2)
the date of the accident; (3) the name and location of the
                                                                  Methodist further argues that its listing of Ward as the liable
hospital or emergency services provider claiming the lien; and
                                                                  party does not render the notice out of compliance with the
(4) the name of the person alleged to be liable for damages
                                                                  statute because the name of the liable party is not required.
arising from the injury, if known. TEX. PROP.CODE ANN.
                                                                  The statute requires the name of the liable party only “if
§ 55.005(b) (Vernon 2007). As stated above, the notice of lien
                                                                  known.” See id. § 55.005(b)(4). Having undertaken to name
filed by Methodist incorrectly stated the date of the accident
                                                                  the liable party, however, it was incumbent upon Methodist
and listed Ward, the injured person, as the person liable for
                                                                  to name the correct party. Indeed, by naming Ward as the
the damages.
                                                                  liable party, the notice of lien appears unenforceable on its
                                                                  face. A hospital can impose a lien only on a cause of action
 [2]    [3] Methodist first argues that, because a hospital
                                                                  or claim that an individual has for injuries “caused by an
lien is statutorily created, substantial compliance with the
                                                                  accident attributed to the negligence of another person.” See
notice requirements is all that is required for the lien to
                                                                  id. § 55.002(a) (emphasis added). By naming Ward as both
be enforceable. See Citicorp Real Estate, Inc. v. Banque
                                                                  the injured party and the liable party, the notice appears to
Arabe Internationale D' Investissement, 747 S.W.2d 926, 929
                                                                  negate the element that the accident was attributed to the
(Tex.App.-Dallas 1988, writ denied) (substantial compliance
                                                                  negligence of another person.
all that is required for statutorily created judicial lien).
Even assuming substantial compliance with the notice
                                                                  To adopt Methodist's argument that its notice of lien
requirements is sufficient for a hospital lien to be enforceable,
                                                                  substantially complied with the requirements of section
we conclude the notice at issue in this case did not
                                                                  55.005 would vitiate the requirements of the statute. We
substantially comply with the requirements of section
                                                                  conclude the trial court properly ruled Methodist's lien
55.005(b). “Substantial compliance” does not permit a party
                                                                  was unenforceable under section 55.005. Because of our
to ignore statutory requirements. See Wesco Distribution, Inc.
                                                                  resolution of this issue, it is unnecessary for us to Methodist's
v. Westport Group, Inc., 150 S.W.3d 553, 559 (Tex.App.-
                                                                  the other issues.
Austin 2004, no pet.). Even if we liberally construe a statute
to achieve its purposes, we may not enlarge or alter the plain
                                                                  We affirm the trial court's judgment.
meaning of the statutory language. See Conn, Sherrod & Co.
v. Tri–Electric Supply Co., 535 S.W.2d 31, 34 (Tex.Civ.App.-
Tyler 1976, writ ref'd n.r.e.).                                   All Citations

 [4] Taken together, the errors made by Methodist in its           259 S.W.3d 358
notice of lien render the lien unenforceable. Of the four


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               2
Methodist Hospitals of Dallas v. Mid-Century Ins. Co. of Texas, 259 S.W.3d 358 (2008)




Footnotes
1      Methodist later dismissed its claims against Hernandez.


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            3
Nall v. Plunkett, 404 S.W.3d 552 (2013)
56 Tex. Sup. Ct. J. 818

                                                                  of action against the Nalls for negligence based on an
                                                                  undertaking theory and for premises liability. The Nalls
                     404 S.W.3d 552
                                                                  moved for summary judgment as to Plunkett's negligence
                 Supreme Court of Texas.
                                                                  claim on the ground that they owed no duty to Plunkett
             Justin Curtis NALL, Robert W.                        under the facts pled in his petition. The trial court rendered
            Nall, and Olga L. Nall, Petitioners,                  judgment in favor of the Nalls as to “all issues except those
                            v.                                    relating to premises liability.” Plunkett appealed, arguing that
                                                                  summary judgment was improper because the Nalls' summary
            John B. PLUNKETT, Respondent.
                                                                  judgment motion addressed only social host liability and
            No. 12–0627.       |   June 28, 2013.                 not the negligent-undertaking theory. The court of appeals
                                                                  agreed and reversed the summary judgment. 374 S.W.3d 584,
Synopsis                                                          586–87. We hold that the Nalls' summary judgment motion
Background: Guest at New Year's Eve party brought                 specifically addressed the negligent-undertaking claim by
negligence action against hosts and driver relating to personal   arguing that our decision in Graff v. Beard, 858 S.W.2d 918,
injuries he sustained when he attempted to prevent the            921 (Tex.1993), forecloses the assumption of any duty by a
driver from driving intoxicated after leaving the party. The      social host under the facts of this case. Because Plunkett did
District Court, Fort Bend County, Brady G. Elliott, J., granted   not argue that summary judgment was improper on the merits,
summary judgment in favor of hosts. Guest appealed. The           we do not reach any substantive issues related to the summary
Court of Appeals, Charles W. Seymore, J., 374 S.W.3d 584,         judgment. See TEX.R.APP. P. 53.4. Accordingly, we reverse
reversed and remanded. Hosts sought review which was              the court of appeals' judgment and reinstate the trial court's
granted.                                                          judgment.

                                                                  Plunkett attended Justin Nall's New Year's Eve party at a
                                                                  home that is owned by his parents, Robert and Olga Nall.
[Holding:] The Supreme Court held that summary judgment
                                                                  Plunkett alleges that the Nalls hosted the party and, knowing
motion specifically addressed the negligent-undertaking
                                                                  that alcohol would be consumed at the house, required all
claim as required for Court of Appeals to affirm summary
                                                                  attendees who remained at the house after midnight to spend
judgment on that basis.
                                                                  the night. Plunkett contends that the Nalls failed to confiscate
                                                                  car keys of those who remained after midnight or take any
Reversed.                                                         other actions to keep attendees from leaving. The petition
                                                                  states that Robert and Olga went to bed after midnight
                                                                  but before 2:00 a.m., without ensuring that those still in
Attorneys and Law Firms                                           attendance would remain until they were safe to drive. Shortly
                                                                  after 2:00 a.m., Kowrach and a friend attempted to leave
*553 David Hill Bradley, Walters Balido & Crain, L.L.P.,
                                                                  in the friend's vehicle. Plunkett alleges that he attempted to
Houston, TX, Gregory R. Ave, Jason L. Wren, Walters,
                                                                  convince Kowrach not to leave, as they were both intoxicated.
Balido & Crain, L.L.P., Dallas, TX, for Petitioner Justin
                                                                  As Plunkett stood on the running board of the vehicle and
Curtis Nall.
                                                                  attempted to pull the keys from the ignition, Kowrach pressed
Charles H. Peckham, Mary Abbott Martin, Peckham PLLC,             the accelerator, gathered speed, then hit the brakes. The
Jon M. Stautberg, Attorney at Law, Houston, TX, for               sudden braking and Plunkett's momentum propelled him head
Respondent John B. Plunkett.                                      first into the ground, lodging his head under a parked car.
                                                                  Plunkett suffered traumatic brain damage as a result of his
Opinion                                                           injuries and will require medical care for the rest of his life.

*554 PER CURIAM.                                                  Plunkett sued the Nalls and Kowrach. Plunkett alleged that
                                                                  the Nalls were liable for “common law negligence,” “fail[ing]
This case presents an issue of summary judgment procedure.
                                                                  to exercise due care in their undertaking” to protect guests,
John Plunkett sued Justin Nall, Robert Nall, Olga Nall,
                                                                  and for premises liability. The Nalls moved for summary
and Justin Kowrach for personal injuries suffered at a New
                                                                  judgment, arguing that they owed no duty to Plunkett. The
Year's Eve party at the Nalls' residence. Plunkett pled causes


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Nall v. Plunkett, 404 S.W.3d 552 (2013)
56 Tex. Sup. Ct. J. 818

trial court granted the motion as to all claims except for the     from the pleadings any grounds for granting the summary
premises liability claim, which Plunkett eventually nonsuited.     judgment other than those grounds expressly set forth before
The trial court then severed Plunkett's claims against the Nalls   the trial court. McConnell, 858 S.W.2d at 343.
from his claims against Kowrach. Plunkett appealed. The
only issue briefed by Plunkett on appeal was whether the        [4] [5] Like the court of appeals, we construe Plunkett's
trial court erred by granting summary judgment on Plunkett's   petition as alleging two causes of action against the
undertaking claim based on the Nalls' alleged failure to       Nalls: (1) “common law negligence” based on the Nalls'
address that claim.                                            failure to “exercise due care in their undertaking” (the
                                                               negligent-undertaking claim), and (2) premises liability. The
A divided court of appeals reversed and remanded, holding      critical inquiry concerning the duty element of a negligent-
that the trial court erred by granting summary judgment        undertaking theory is whether a defendant acted in a way
because the Nalls failed to address Plunkett's negligent-      that requires the imposition of a duty where one otherwise
undertaking theory in their motion. 374 S.W.3d at 586.         would not exist. See Torrington Co. v. Stutzman, 46 S.W.3d
The court of *555 appeals construed Plunkett's petition        829, 838–39 (Tex.2000); see also Osuna v. S. Pac. R.R.,
as alleging a claim for negligence based on an undertaking     641 S.W.2d 229, 230 (Tex.1982) (“Having undertaken to
theory and the Nalls' summary judgment motion as arguing       place a flashing light at the crossing for the purpose of
only that summary judgment was proper as to a negligence       warning travelers, the railroad was under a duty to keep
claim based on social host liability. Id. at 586–87.           the signal in good repair, even though the signal was
                                                               not legally required.”). In Torrington, we held that a jury
 [1]    [2]    [3] This procedural issue was the only issue submission for a negligence claim predicated on a negligent-
argued by Plunkett on appeal and the only issue addressed      undertaking theory requires a broad-form negligence question
by the court of appeals. See id. at 585. We review a grant     accompanied by instructions detailing the essential elements
of summary judgment de novo. Exxon Corp. v. Emerald Oil        of an undertaking claim. Torrington, 46 S.W.3d at 838–
& Gas Co., 331 S.W.3d 419, 422 (Tex.2010). In a summary        39. Accordingly, the broad-form submission for a typical
judgment motion under Rule 166a(c) of the Texas Rules of       negligence claim and a negligent-undertaking claim is the
Civil Procedure, a movant “shall state the specific grounds    same, except that an undertaking claim requires the trial
therefor,” and a defendant who conclusively negates at least   court to instruct the jury that a defendant is negligent only
one of the essential elements of a cause of action is entitled if: (1) the defendant undertook to perform services that it
to summary judgment. TEX. R. CIV. P. 166a(c). A trial          knew or should have known were necessary for the plaintiff's
court cannot grant summary judgment on grounds that were       protection; (2) the defendant failed to exercise reasonable
not presented. See, e.g., FDIC v. Lenk, 361 S.W.3d 602,        care in performing *556 those services; and either (a) the
609 (Tex.2012); see also G & H Towing Co. v. Magee,            plaintiff relied upon the defendant's performance, or (b) the
347 S.W.3d 293, 297 (Tex.2011) (per curiam) (“Granting a       defendant's performance increased the plaintiff's risk of harm.
summary judgment on a claim not addressed in the summary       Id.; see also RESTATEMENT (SECOND) OF TORTS §
judgment motion therefore is, as a general rule, reversible    324A (providing the rule for liability to a third person for
error.”). “Issues not expressly presented to the trial court   negligent performance of an undertaking).
by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.” TEX. R.          [6] [7] The Nalls' summary judgment motion stated the
CIV. P. 166a(c). We have also noted that “[a]n exception is    issue addressed as: “Whether [the Nalls] have any duty to
required should a non-movant wish to complain on appeal        [Plunkett] in the factual scenario plead by [Plunkett].” The
that the grounds relied on by the movant were unclear or       Nalls' “short answer” was that “Texas does not recognize
ambiguous.” McConnell v. Southside Indep. Sch. Dist., 858      social host liability, and [the Nalls] do not have any duty to
S.W.2d 337, 342 (Tex.1993); see also D.R. Horton–Tex., Ltd.    [Plunkett] in this case.” Plunkett did not file any exception to
v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex.2009)       the Nalls' motion. The court of appeals construed the Nalls'
(“A non-movant must present its objections to a summary        motion as addressing Plunkett's negligence claim only as a
judgment motion expressly by written answer or other written   social-host liability claim and not as a negligent-undertaking
response to the motion in the trial court or that objection is claim. 374 S.W.3d at 586. We construe the Nalls' motion,
waived.”). However, even when a non-movant fails to except,    however, as specifically moving for summary judgment on
the court of appeals cannot “read between the lines” or infer  the duty element of Plunkett's negligence claim, making a



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Nall v. Plunkett, 404 S.W.3d 552 (2013)
56 Tex. Sup. Ct. J. 818

                                                                           of appeals erred by reversing the trial court's judgment on
two-part argument that addressed the absence of a duty in both
                                                                           procedural grounds.
the social host context and the undertaking context. First, the
                                                                         [8] Whether the Nalls were entitled to summary judgment
Nalls correctly pointed out that, under Texas law, a host has
                                                                        based on the merits of the argument above is not at issue in
no duty to prevent a guest who will be driving from becoming
                                                                        this appeal, and we do not address it. Texas Rule of Appellate
intoxicated or to prevent an intoxicated guest from driving. 1
                                                                        Procedure 53.4 provides that a party may obtain a remand
See Graff, 858 S.W.2d at 918. Second, the Nalls addressed the
                                                                        to the court of appeals to address issues or points briefed in
undertaking theory asserted by Plunkett in light of Graff. 2            that court but not decided by that court, or we may address
Specifically, the Nalls argued:                                         those issues in the interest of judicial economy. TEX.R.APP.
                                                                        P. 53.4. As we previously noted, Plunkett briefed only the
                                                                        procedural issue on appeal to the court of appeals. He did not
    [Plunkett] places a great amount of emphasis on the alleged
                                                                        argue that a genuine issue of material fact precluded summary
    “rule” of the Nall hosts that required a guest who was
    still at the home at midnight to spend the night. The court         judgment on the merits. 3 We conclude that Plunkett waived
    in Graff v. Beard also discussed the scenario wherein a             the issue of whether summary judgment was proper on the
    home owner attempts to assume that duty and the problems            merits in this case by failing to brief it in the court of appeals.
    inherent in trying to decide scope of duty in that context.         See id. Accordingly, we grant *557 the Nalls' petition for
    The Supreme Court refuses to recognize the assumption of            review, and without hearing oral argument, we reverse the
    the duty argument in the case of a social host.                     court of appeals' judgment and reinstate the trial court's
    We hold that the Nalls' summary judgment motion                     judgment. See TEX.R.APP. P. 59.1.
    specifically addressed the negligent-undertaking claim by
    arguing that Graff forecloses the assumption of any duty
                                                                        All Citations
    (i.e., an undertaking) by a social host. Therefore, the court
                                                                        404 S.W.3d 552, 56 Tex. Sup. Ct. J. 818


Footnotes
1        The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading:
         “No statutory or common law duty is owed by a social host.”
2        The portion of the Nalls' summary judgment motion that addressed this point was introduced by the following heading:
         “Absent a legal right to restrain a guest, a host owes no duty to a guest to do so.”
3        Plunkett's brief at the court of appeals provided that the issue was a “legal one—sufficiency of pleadings to support a
         cause of action.”


End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    3
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)




                     451 S.W.3d 133
                Court of Appeals of Texas,                                                 OPINION
                        Amarillo.
                                                                 Brian Quinn, Chief Justice
               Pak–a–Sak, Inc., Appellant
                                                                 This is an appeal from an order denying an application for
                             v.
                                                                 a license to sell alcoholic *136 beverages at a Pak–a–
                City of Perryton, Appellee                       Sak convenience store location in the City of Perryton (the
                                                                 City). The denial was premised on a municipal ordinance
     No. 07–14–00047–CV           |   November 6, 2014
                                                                 which prohibits the sale of alcohol within a “residential
Synopsis                                                         area” of the City. Pak–a–Sak contends that 1) the ordinance
Background: Convenience store petitioned for review of           unconstitutionally grants authority to the City in excess of
decision by city to deny its application for permit to sell      that granted by the legislature under the Texas Alcoholic
wine and beer. The County Court, Ochiltree County, affirmed      Beverages Code, 2) the ordinance is unconstitutionally vague
denial, and store appealed. The 84th District Court, Ochiltree   and ambiguous, and 3) there is no substantial evidence to
County, William D. Smith, J., affirmed. Store appealed.          support a finding that Pak–a–Sak's location is in a residential
                                                                 area. We affirm.

                                                                 On April 16, 2013, the City enacted Ordinance 1000–
Holdings: The Court of Appeals, Brian Quinn, C.J., held that:    13 which states: “It shall be unlawful for any person to
                                                                 sell, dispense or deliver, or cause to be sold, dispensed
[1] city did not exceed its statutory authority to enact         or delivered, any beer, liquor, or any other intoxicating
ordinance prohibiting sale of beer in residential area when it
                                                                 beverage within a residential area in the city.” 1 The
enacted ordinance prohibiting sale, dispensation, or delivery
                                                                 ordinance was enacted under the authority of § 109.32 of
of any alcoholic beverage within residential area in city;
                                                                 the Texas Alcoholic Beverage Code which provides that
                                                                 an incorporated city may prohibit the sale of beer in a
[2] ordinance was not unconstitutionally vague; and
                                                                 residential area. TEX. ALCO. BEV.CODE ANN.. § 109.32
                                                                 (West 2007). Neither the statute nor the ordinance define
[3] substantial evidence supported finding that convenience
                                                                 the phrase “residential area.” On June 3, 2013, Pak–a–Sak
store was located within residential area.
                                                                 submitted an Application for Wine and Beer Retailer's Off–
                                                                 Premises Permit (BQ license) to the City for its store at 522
Affirmed.                                                        SW 9th Avenue in Perryton. 2 The application was denied.
                                                                 That decision was appealed to the county court which upheld
                                                                 it. It was then appealed to the district court which did the
*135 On Appeal from the 84th District Court, Ochiltree           same.
County, Texas, Trial Court No. CV–13743, Honorable
William D. Smith, Presiding
                                                                 Ultra Vires
Attorneys and Law Firms                                           [1] As previously mentioned, Pak–a–Sak initially contends
                                                                 that the City exceeded legislative authorization by failing to
Benjamin Doyle, Gavin Gadberry, Underwood Law Firm,
                                                                 define “residential area.” That is, “[b]y failing to objectively
P.C., Amarillo, for Appellant.
                                                                 define ‘residential area,’ the City [allegedly] acted outside the
Angelique S. Weaver, Kristi R. Weaber, Mayfield Law Firm,        scope of its authority.” Appellant continues by arguing that
Amarillo, for Appellee.                                          the “Texas Legislature did not provide municipalities with
                                                                 unlimited authority to determine when its actors may prohibit
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.                  the sale of alcohol ... once a county has voted under a Local
                                                                 Option Election to allow the sale of alcohol, the municipality
                                                                 may only limit the sale in certain circumstances ... [which]



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)


circumstances are outlined in the Texas Alcoholic Beverages       as to leave a governing body free to decide, without any
Code.”                                                            legally fixed guidelines, what is prohibited in each particular
                                                                  case. Lindig v. City of Johnson City, No. 03–11–00660–CV,
The circumstance alluded to is specified in § 109.32 and          2012 WL 5834855, at *3, 2012 Tex.App. LEXIS 9563, at *12
states that “[a]n incorporated city or town by charter or         (Tex.App.—Austin November 14, 2012, no pet.) (mem.op.).
ordinance may ... prohibit the sale of beer in a residential      If persons of common intelligence are compelled to guess at
area.” TEX. ALCO. BEV.CODE ANN.. § 109.32(a)(1)                   its meaning and applicability, then principles of due process
(West 2007) (Emphasis added). The portion of the ordinance        will not let it stand. Id. at *3–4, 2012 Tex.App. LEXIS 9563,
adopted by the City and attacked at bar reads: “[i]t shall        at *12–13.
be unlawful for any person to sell, dispense or deliver, or
cause to be sold, dispensed or delivered, any beer, liquor, or   [7]     [8]    [9]    [10] Yet, it should be remembered that
any other intoxicating beverage within a residential area in    statutes deal with “untold and unforeseen variations in factual
the city.” (Emphasis added). As can be seen, the limitation     situations, and the practical necessities of discharging the
mentioned in the statute is identical to that specified in the  business of government inevitably limit the specificity with
ordinance. Moreover, and contrary to the insinuation of Pak–    which legislators can spell out prohibitions.” Pennington v.
a–Sak, § 109.32 does not direct the municipality to further     Singleton, 606 S.W.2d 682, 689 (Tex.1980). Thus, no more
define the phrase “residential area.” Nor did appellant cite    than a reasonable degree of certainty can be demanded. Id.;
us to authority expressly imposing such an obligation on the    Vista Healthcare, Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d
City. Given that the ordinance simply reiterated the limitation 264, 273 (Tex.App.—Austin 2010, pet. denied). Nor do the
specified by the statute, we cannot say that the City acted     words of a statute fall short of providing a reasonable degree
outside the scope of its authority by enacting the ordinance.   of certainty because they are undefined. Vista Healthcare,
                                                                Inc. v. Tex. Mut. Ins. Co., 324 S.W.3d at 273 (stating that
                                                                a “law is not unconstitutionally vague merely because it
Void for Vagueness                                              does not define words or phrases”). Nor does the existence
 [2] Next, we address Pak–a–Sak's constitutional complaint. of a dispute as to a law's meaning necessarily render the
It believes that the phrase “residential area” is ambiguous and provision unconstitutionally vague. Id. Again, the verbiage
 *137 susceptible to ad hoc interpretation and application.     need only provide a reasonable degree of certainty as to what
That purportedly being so, and because the City failed to       is proscribed. And, the test “is relaxed” when the conduct
provide guidelines explaining what it meant by or otherwise     being regulated is not normally considered constitutionally
define the phrase, the provision is impermissibly vague and,    protected. See Hoffman Estates v. Flipside, Hoffman Estates,
therefore, unconstitutional because it violates due process. 3  Inc., 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d
We disagree.                                                    362 (1982) (stating that “[t]he degree of vagueness that the
                                                                Constitution tolerates—as well as the relative importance
 [3]     [4] The same rules apply to the construction of of fair notice and fair enforcement—depends in part on
ordinances as to the construction of statutes. Bd. of           the nature of the enactment. Thus, economic regulation is
Adjustment of San Antonio v. Wende, 92 S.W.3d 424, 430          subject to a less strict vagueness test because its subject
(Tex.2002); Mills v. Brown, 159 Tex. 110, 316 S.W.2d            matter is often more narrow ....”); accord Commission for
720, 723 (1958). Furthermore, we generally presume that         Lawyer Discipline v. Benton, 980 S.W.2d at 437–38 (stating
an ordinance is valid, and the party challenging it has the     that “[t]he vagueness doctrine requires different levels of
burden to prove otherwise. Bd. of Adjustment of San Antonio     clarity depending on the nature of the law in question. Courts
v. Wende, 92 S.W.3d at 431; Brookside Village v. Comeau,        demand less precision of statutes that impose only civil *138
633 S.W.2d 790, 792–93 (Tex.1982).                              penalties than of criminal statutes because their consequences
                                                                  are less severe.”). 4
 [5]   [6] Next, a statute or ordinance is unconstitutionally
vague if it fails to give fair notice of what conduct              [11]    [12] We also mention that this requirement for a
may be punished or it invites arbitrary and discriminatory        reasonable degree of certainty can be provided through
enforcement by failing to establish guidelines. Commission        the use of ordinary terms having adequate interpretation in
for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437              common usage and understanding. Lindig v. City of Johnson
(Tex.1998). That is, it may not be so vague and standardless      City, 2012 WL 5834855, at *4, 2012 Tex.App. LEXIS 9563,



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            2
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)


at *13 (stating that “the reasonable-certainty requirement            live. Indeed, it has been defined as a location “containing
‘does not preclude the use of ordinary terms to express               mostly homes instead of stores [or] businesses,” “used as
ideas which find adequate interpretation in common usage              a place to live,” or “of or relating to the places where
and understanding’ ”); Webster v. Signad, Inc., 682 S.W.2d            people live.” See MERRIAM–WEBSTER DICTIONARY,
644, 647 (Tex.App.—Houston [1st Dist.] 1984, writ ref'd               http://merriam-webster.com (last visited Nov. 6, 2014). In
n.r.e). Simply put, where the statute fails to define pivotal         turn, “area” describes, in common parlance, “a part or
words contained therein, reference to their common usage and          section within a larger place.” Id. When those definitions are
understanding can supply the requisite certainty.                     combined in the context *139 of the statute and ordinance at
                                                                      issue, it is quite reasonable to construe the phrase “residential
 [13]    [14]    [15]     [16] Also of note is that a law is       notarea” to encompass, at the very least, a section of the city
automatically vague merely because difficulty is experienced          wherein people primarily maintain homes and live. Stated
in determining whether certain marginal conduct falls within          differently, it is reasonably certain that what constitutes a
its scope. Pennington v. Singleton, 606 S.W.2d at 689. This           “residential area” includes a neighborhood wherein people
is of import because in assessing whether a statute is void           primarily live and maintain homes. Admittedly, the margins
for vagueness when First Amendment freedoms are not                   of the phrase may be difficult to determine. Whether they
implicated, we examine the matter “ ‘in light of the facts of         would encompass an industrial region wherein one or two
the case at hand.’ ” Hoffman Estates v. Flipside, Hoffman             people maintain a house is subject to reasonable debate. But,
Estates, Inc., 455 U.S. at 495 n. 7, 102 S.Ct. 1186. In               again, we are to analyze the attack “ ‘in light of the facts of the
such circumstances, a facial challenge has merit “only if the         case at hand.’ ” And, the “facts at hand” do not depict such
enactment is impermissibly vague in all of its applications.”         an area.
Id. at 494–95, 102 S.Ct. 1186; accord In re Commitment
of Fisher, 164 S.W.3d 637, 654–55 (Tex.2005) (stating that           Instead, the record shows that the Pak–a–Sak store in question
to “prevail on his facial vagueness challenge ... [one] bears        is surrounded by houses and people living in them. One need
the heavy burden of showing that the Act is unconstitutional         only look at the pictures of the location and its neighbors
in every possible application”). A complainant who engages           to see that. While some businesses (e.g., a beauty parlor, a
in some conduct that is clearly proscribed “cannot complain          dog grooming business, and an auto mechanic shop) may be
of the vagueness of the law as applied to the conduct of             operated within various of those homes, people still primarily
others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc.,         live within the neighboring environs of that Pak–a–Sak. 5
455 U.S. at 495, 102 S.Ct. 1186. “A court should therefore           Given this, we have before us a circumstance encompassed by
examine the complainant's conduct before analyzing the other         a reasonable interpretation of what constitutes a “residential
hypothetical applications of the law.” Id.                           area.” Selling beer from the Pak–a–Sak here would be
                                                                     conduct clearly proscribed by the ordinance; it would be
Here, the trial court determined that the term “residential          conduct clearly within the common meaning of “residential
area” had a “definite meaning that is objectively determinable       area,” that is, a section of the City wherein people primarily
in its application.” Indeed, this conclusion appears supported       maintain homes and live. So, we cannot say that the ordinance
by various definitions of the term proffered by the City's           has been shown to be vague in all of its applications as
witnesses. For instance, the mayor testified it is a “geographic     required, and we overrule the issue before us given the
area of houses in which people live” or a “geographic area           particular circumstances at bar.
consisting primarily of homes where people live.” A city
council member testified that a residential area is “anywhere
there was a grouping of houses” or a “geographic area                Substantial Evidence
primarily occupied by houses.” The city manager defined it            [17] Finally, Pak–a–Sak argues that “the City was required to
as an “area where people reside” or an area that “primarily          establish by substantial evidence that the location in question
consists of houses” regardless of use. Common in each is the         met the requirements of the regulation it intended to enforce”
notion that the area must generally consist of abodes wherein        and that it “did not meet their burden of admitting substantial
people live.                                                         evidence of Pak–a–Sak's location being within a ‘residential
                                                                     area.’ ” We overrule this issue as well.
To the foregoing, we add that the common meaning of
the term “residential” describes a location at which people



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   3
Pak-a-Sak, Inc. v. City of Perryton, 451 S.W.3d 133 (2014)



 [18] A decision has the support of substantial evidence when
                                                                 As we observed in our discussion of the issue immediately
the evidence of record, viewed as a whole, is such that
                                                                 preceding this one, the record contains more than a scintilla
reasonable minds could have reached the same conclusion.
                                                                 of evidence illustrating that Pak–a–Sak was located in a
Texas Alcoholic Beverage Comm'n v. Sierra, 784 S.W.2d 359,
                                                                 “residential area.” Consequently, the decision by the City of
360 (Tex.1990); Melmat, Inc. v. Texas Alcoholic Beverage
                                                                 Perryton to deny the permit has the support of substantial
Comm'n, 362 S.W.3d 211, 214 (Tex.App.—Dallas 2012,
                                                                 evidence.
no pet.); accord Texas Alcoholic Beverage Comm'n v. I
Gotcha, Inc., No. 07–05–0411–CV, 2006 WL 2095449, at
                                                                 *140 Having rejected each issue proffered by Pak–a–Sak,
*2–3, 2006 Tex.App. LEXIS 6733, at *6–7 (Tex.App.—
                                                                 we affirm the order of the trial court.
Amarillo July 28, 2006, pet. denied) (mem.op.) (stating
that substantial evidence exists if the evidence is such that
reasonable minds could have reached the same conclusion).
                                                                 All Citations
And, the quantum of evidence need only be more than a
scintilla. Texas Alcoholic Beverage Comm'n v. I Gotcha, Inc.,    451 S.W.3d 133
2006 WL 2095449, at *2, 2006 Tex.App. LEXIS 6733, at *6.


Footnotes
1      There is no zoning in Perryton.
2      This occurred after a general election on May 11, 2013, in Ochiltree County permitting the sale of alcoholic beverages
3      Pak–a–Sak does not challenge § 109.32(a)(1) of the Beverage Code as unconstitutionally vague, only the ordinance.
4      Pak–a–Sak does not suggest that the opportunity to sell beer in Perryton, Texas, is of constitutional dimension.
5      At least one witness also described the neighborhood as primarily occupied by houses.


End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            4
Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

                                                                   do so a misdemeanor. See TEX. FAM.CODE §§ 261.101(a),
                                                                   261.109 (formerly TEX. FAM.CODE §§ 34.01, 34.07). The
                     973 S.W.2d 301
                                                                   trial court granted summary judgment for defendants, but the
                 Supreme Court of Texas.
                                                                   court of appeals reversed and remanded plaintiffs' negligence
       Douglas Wayne PERRY, Janise White,                          per se and gross negligence claims for trial. Nash v. Perry,
           and Raul Quintero, Petitioners,                         944 S.W.2d 728 (Tex.App.—Austin 1997). We reverse the
                          v.                                       judgment of the court of appeals and render judgment that
                                                                   plaintiffs take nothing. Because plaintiffs did not preserve
   S.N. and S.N., individually and a/n/f of B.N., a
                                                                   their common law negligence claims, we do not decide
   minor, and a/n/f of K.N., a minor, Respondents.
                                                                   whether there should be a common law duty to report child
               No. 97–0573. | Argued Jan.                          abuse in some circumstances.
           7, 1998. | Decided July 3, 1998.
                                                                   B.N. and K.N. attended a day care center operated by Francis
Parents, individually and as next friends of their children,       Keller and her husband Daniel Keller from March 25, 1991,
brought negligence action against friends of day care              to August 28, 1991. Their parents, S.N. and S.N., allege that
providers for failing to report child abuse they allegedly         during that period, Daniel Keller regularly abused B.N. and
witnessed at day-care center. The 53rd Judicial District Court,    K.N. and other children at the center both physically and
Travis County, Paul R. Davis, Jr., J., granted friends' motion     sexually. Mr. and Mrs. N. brought suit against the Kellers and
for summary judgment, and parents appealed. The Austin             three of the Kellers' friends, Douglas Perry, Janise White, and
Court of Appeals, 944 S.W.2d 728, reversed and remanded,           Raul Quintero. Plaintiffs claim that Francis Keller confided
and friends petitioned for writ of error. The Supreme Court,       in White at an unspecified time that Daniel Keller had
Phillips, C.J., held that violation of child abuse reporting       “abusive habits toward children.” They further allege that
statute was not negligence per se.                                 on one occasion in August 1991, while visiting the Kellers,
                                                                   defendants Perry, White, and Quintero all saw Daniel Keller
Reversed and rendered.                                             bring a number of children out of the day care center into
                                                                   the Kellers' adjoining home and sexually *303 abuse them.
                                                                   The record does not indicate whether B.N. and K.N. were
Attorneys and Law Firms                                            among these children. According to plaintiffs, Perry, White,
                                                                   and Quintero did not attempt to stop Daniel Keller from
*302 Gary E. Zausmer, Jeffrey Jury, Tom Tourtellotte,
                                                                   abusing the children or report his crimes to the police or child
Austin, for Petitioners.
                                                                   welfare authorities.
Greg Reed, Lionel J. Roach, Austin, for Respondents.
                                                                    [1] Plaintiffs' brief filed in this Court alleges additional facts
Opinion                                                            that were not contained in their trial court pleadings. They
                                                                   now assert that Perry pleaded guilty to indecency with a
PHILLIPS, Chief Justice, delivered the opinion of the Court.       child by contact and that White and Quintero were indicted
                                                                   but not prosecuted for sex offenses involving the children at
Respondents' motion for rehearing is overruled. Our opinion
                                                                   the day care center. Plaintiffs' trial court petition, however,
of May 8, 1998, is withdrawn and the following is substituted
                                                                   did not allege that Perry, White, or Quintero participated in
in its place.
                                                                   abusing B.N. and K.N. or other children. We may not consider
                                                                   factual assertions that appear solely in the appellate briefs and
This is a suit for injuries arising out of the abuse of children
                                                                   not before the trial court. See Estate of Arrington v. Fields,
at a day care center. Plaintiffs filed suit individually and as
                                                                   578 S.W.2d 173, 183 (Tex.Civ.App.—Tyler 1979, writ ref'd
next friends of their two children, alleging that defendants
                                                                   n.r.e.).
witnessed the abuse and failed to report it to the police or
child welfare officials. The sole issue before us is whether
                                                                   Instead, Mr. and Mrs. N. alleged only that Perry, White, and
plaintiffs may maintain a cause of action for negligence per
                                                                   Quintero were negligent per se because they violated a statute
se based on the Family Code, which requires any person
                                                                   requiring any person who “has cause to believe that a child's
having cause to believe a child is being abused to report the
                                                                   physical or mental health or welfare has been or may be
abuse to state authorities and makes the knowing failure to


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               1
Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

adversely affected by abuse” to file a report with the police     them on common law negligence. Therefore, the question of
or the Department of Protective and Regulatory Services.          whether Texas should impose a new common law duty to
TEX. FAM.CODE § 261.109(a). Plaintiffs also asserted              report child abuse on the facts of this case is not before us. See
gross negligence and common law negligence claims. They           generally Golden Spread Council, Inc. v. Akins, 926 S.W.2d
claimed that Perry, White, and Quintero's failure to report       287, 291–92 (Tex.1996); Butcher v. Scott, 906 S.W.2d 14,
the abuse proximately caused them harm by permitting the          15–16 (Tex.1995) (both refusing to recognize a common law
day care center to remain open, thus enabling Daniel Keller       duty to report abuse under the circumstances of those cases);
to continue abusing the children at the center. They sought       Greater Houston *304 Transp. Co. v. Phillips, 801 S.W.2d
damages for pain, mental anguish, and medical expenses, as        523, 525 (Tex.1990) (setting out factors for deciding whether
well as loss of income when they could not work outside the       a common law duty should exist). We granted defendants'
home because of B.N. and K.N.'s injuries.                         application for writ of error to resolve the conflict between
                                                                  the court of appeals' decision remanding the negligence per
 [2] [3] Perry, White, and Quintero moved for summary se claims for trial and the decisions of three other courts
judgment on the sole ground that plaintiffs failed to state a     of appeals declining to permit tort liability for violation of
cause of action. None of the parties presented any summary        the statutory child abuse reporting requirement. See Marshall
judgment evidence. A court may not grant summary judgment         v. First Baptist Church, 949 S.W.2d 504, 508 (Tex.App.—
for failure to state a cause of action without first giving the   Houston [14th Dist.] 1997, no writ); Childers v. A.S., 909
plaintiff an opportunity to amend the pleadings. See Pietila      S.W.2d 282, 289–90 (Tex.App.—Fort Worth 1995, no writ);
v. Crites, 851 S.W.2d 185, 186 n. 2 (Tex.1993). Before any        Scott v. Butcher, 906 S.W.2d 16, 20–21 (Tex.App.—Tyler
defendant moved for summary judgment, however, White              1994), rev'd on other grounds, 906 S.W.2d 14 (Tex.1995). 1
filed special exceptions arguing that plaintiffs had not stated
a cause of action, and plaintiffs subsequently amended their       [6] “It is fundamental that the existence of a legally
petition. Although it appears from the record that Perry and      cognizable duty is a prerequisite to all tort liability.” Graff v.
Quintero did not file special exceptions, their motions for       Beard, 858 S.W.2d 918, 919 (Tex.1993). The court of appeals
summary judgment were based solely on the grounds argued          found a duty in the following mandatory child abuse reporting
in White's special exceptions. Thus, Mr. and Mrs. N. had a        provisions of the Texas Family Code:
fair opportunity to correct any deficiency in their pleadings.
                                                                                A person having cause to believe that
 [4] [5] The trial court granted Perry, White, and Quintero's                   a child's physical or mental health or
motions for summary judgment and severed plaintiffs' claims                     welfare has been adversely affected by
against those three defendants from their suit against the                      abuse or neglect by any person shall
Kellers, which is not before us. Because defendants' motions                    immediately make a report as provided
for summary judgment argued only that plaintiffs failed to                      by this subchapter.
state a cognizable claim, the trial court's judgment can be
upheld, if at all, only on that ground. See McConnell v.          TEX. FAM.CODE § 261.101(a). 2
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993).
When the ground for the trial court's decision is that plaintiffs
failed to state a cause of action, we must take the allegations      (a) A person commits an offense if the person has cause to
in the pleadings as true in determining whether a cause of           believe that a child's physical or mental health or welfare
action exists. See El Chico Corp. v. Poole, 732 S.W.2d 306,          has been or may be adversely affected by abuse or neglect
309 (Tex.1987).                                                      and knowingly fails to report as provided in this chapter.

                                                                        (b) An offense under this section is a Class B
The court of appeals affirmed the summary judgment on
                                                                        misdemeanor.
plaintiffs' common law negligence claims but reversed and
remanded for trial on the issues of negligence per se and gross
                                                                      Id. § 261.109. 3 The court concluded that these provisions
negligence, holding that a violation of the Family Code's
                                                                      create a “statutory duty” to report child abuse, and that a
child abuse reporting requirement is negligence per se. 944
                                                                      violation of this duty is negligence per se. See 944 S.W.2d
S.W.2d 728. Mr. and Mrs. N. have not appealed the court of
                                                                      at 730.
appeals' judgment affirming the summary judgment against



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Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

 [7] All persons have a duty to obey the criminal law in            OF TORTS §§ 286, 288. Texas's first mandatory child abuse
the sense that they may be prosecuted for not doing so, but         reporting statute, from which Family Code section 261.101(a)
this is not equivalent to a duty in tort. See, e.g., Smith v.       is derived, stated that “[t]he purpose of this Act is to protect
Merritt, 940 S.W.2d 602, 607–08 (Tex.1997) (statute making          children who [ ] ... are adversely affected by abuse or neglect.”
it a crime to furnish alcohol to persons under age 21 did not       Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971
impose a tort duty on social hosts). “It is well-established that   Tex. Gen. Laws 2790. Similarly, the current Family Code
the mere fact that the Legislature adopts a criminal statute        provision governing the investigation of reports of child abuse
does not mean that this court must accept it as a standard          states that “[t]he primary purpose of the investigation shall be
for civil liability.” Carter v. William Sommerville & Son,          the protection of the child.” TEX. FAM.CODE § 261.301(d).
Inc., 584 S.W.2d 274, 278 (Tex.1979). “The considerations
which warrant imposing tort liability are not identical with         [10] B.N. and K.N. are within the class of persons whom
those which warrant criminal conviction,” Morris, The Role          the child abuse reporting statute was meant to protect, and
of Criminal Statutes in Negligence Actions, 49 COLUM.               they suffered the kind of injury that the Legislature intended
L.REV.. 21, 22–23 (1949), and we will not apply the doctrine        the statute to prevent. 5 But this does not end our inquiry.
of negligence per se if the criminal statute does not provide       See Praesel v. Johnson, 967 S.W.2d 391, 395 (Tex.1998).
an appropriate basis for civil liability. 4 See *305 Smith,         The Court must still determine whether it is appropriate to
940 S.W.2d at 607; Rudes v. Gottschalk, 159 Tex. 552, 324           impose tort liability for violations of the statute. See Smith,
S.W.2d 201, 204–05 (1959); Phoenix Refining Co. v. Powell,          940 S.W.2d at 607–08. This determination is informed by a
251 S.W.2d 892, 896 (Tex.Civ.App.—San Antonio 1952,                 number of factors, some discussed by the court of appeals
writ ref'd n.r.e.).                                                 in this case and others derived from past negligence per se
                                                                    decisions of Texas courts and from scholarly analyses. *306
 [8] Before we begin our analysis of whether section 261.109        These factors are not necessarily exclusive, nor is the issue
of the Family Code is an appropriate basis for tort liability,      properly resolved by merely counting how many factors lean
we emphasize that we must look beyond the facts of this             each way. Rather, we set out these considerations as guides to
particular case to consider the full reach of the statute. We       assist a court in answering the ultimate question of whether
do not decide today whether a statute criminalizing only the        imposing tort liability for violations of a criminal statute is
type of egregious behavior with which these defendants are          fair, workable, and wise.
charged—the failure of eyewitnesses to report the sexual
molestation of preschool children—would be an appropriate            [11] We first consider the fact that, absent a change in the
basis for a tort action. That is not the statute the Legislature    common law, a negligence per se cause of action against
passed. Rather, the issue before us is whether it is appropriate    these defendants would derive the element of duty solely from
to impose tort liability on any and every person who                the Family Code. At common law there is generally no duty
“has cause to believe that a child's physical or mental             to protect another from the criminal acts of a third party or
health or welfare has been or may be adversely affected             to come to the aid of another in distress. See Butcher, 906
by abuse or neglect and knowingly fails to report.” TEX.            S.W.2d at 15; Otis Eng'g Corp. v. Clark, 668 S.W.2d 307,
FAM.CODE § 261.109(a). Cf. Leonard, The Application of              309 (Tex.1983). Although there are exceptions to this no-duty
Criminal Legislation to Negligence Cases: A Reexamination,          rule, see, e.g., Lefmark Management Co. v. Old, 946 S.W.2d
23 SANTA CLARA L.REV. 427, 457–66 (1983) (contrasting               52, 53 (Tex.1997) (noting that under some circumstances,
the rigidity of statutory standards with the flexibility of case-   person in control of premises has duty to protect invitees from
by-case common law determinations of duty and breach).              crime), this case does not fall within any of the established
                                                                    exceptions, and Mr. and Mrs. N. have not asked this Court
 [9] The threshold questions in every negligence per se case        to impose on persons who are aware of child abuse a new
are whether the plaintiff belongs to the class that the statute     common law duty to report it or take other protective action.
was intended to protect and whether the plaintiff's injury is of
a type that the statute was designed to prevent. See Moughon         [12] In contrast, the defendant in most negligence per se
v. Wolf, 576 S.W.2d 603, 604 (Tex.1978); East Tex. Motor            cases already owes the plaintiff a pre-existing common law
Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613, 615          duty to act as a reasonably prudent person, so that the statute's
(1949); Missouri, K & T. Ry. v. Saunders, 101 Tex. 255,             role is merely to define more precisely what conduct breaches
106 S.W. 321, 321–23 (1908); RESTATEMENT (SECOND)                   that duty. See Rudes, 324 S.W.2d at 204 (“We adopt the



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Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

statutory test rather than that of the ordinarily prudent man as   KEETON ET AL. § 36, at 221 n. 9; Forell, The Statutory
the more accurate one to determine negligence ....”); see also     Duty Action in Tort: A Statutory/Common Law Hybrid, 23
Moughon, 576 S.W.2d at 604; RESTATEMENT (SECOND)                   IND. L.REV. 781, 782 (1990). While our definition has never
OF TORTS § 286 (1965) (both defining negligence per                been so restrictive, this Court in fact *307 has created a new
se as the judicial adoption of a statute to define the             duty by applying negligence per se on only one occasion.
standard of conduct of a reasonable person). For example,          In Nixon v. Mr. Property Management Co., 690 S.W.2d
the overwhelming majority of this Court's negligence per se        546, 549 (Tex.1985), a third party dragged the plaintiff into
cases have involved violations of traffic statutes by drivers      an unlocked vacant apartment owned by the defendant and
and train operators—actors who already owed a common               raped her. Because the plaintiff was a trespasser according
law duty to exercise reasonable care toward others on the          to traditional premises liability categories, the defendant
road or track. See, e.g., Murray v. O & A Express, Inc.,           landowner owed her no common law duty. See id. at 548.
630 S.W.2d 633 (Tex.1982); Impson v. Structural Metals,            Although two members of this Court would have recognized a
Inc., 487 S.W.2d 694 (Tex.1972); Missouri–Kansas–Texas             new common law duty of reasonable care toward trespassers,
R.R. Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956);          at least in certain cases, see id. at 551–54 (Kilgarlin, J.,
Liberty Film Lines v. Porter, 136 Tex. 49, 146 S.W.2d 982          concurring); id. at 554 (Spears, J., concurring), a plurality
(1941); Texas Co. v. Betterton, 126 Tex. 359, 88 S.W.2d 1039       instead found a duty only in a city ordinance requiring
(1936); Lancaster & Wight v. Allen, 110 Tex. 213, 217 S.W.         landowners to keep vacant buildings locked. See id. at 549.
1032 (1920); Missouri, K & T. Ry. Co. v. Saunders, 101 Tex.        But in our next major negligence per se case, El Chico Corp.
255, 106 S.W. 321 (1908); San Antonio & A.P. Ry. Co. v.            v. Poole, we returned to the norm of deriving duty from the
Bowles, 88 Tex. 634, 32 S.W. 880 (1895).                           common law and looking to the statute only for the standard of
                                                                   conduct. Only after we created a new common law duty not to
When a statute criminalizes conduct that is also governed by       sell alcohol to intoxicated persons, see El Chico, 732 S.W.2d
a common law duty, as in the case of a traffic regulation,         at 309–12, did we adopt a relevant section of the Alcoholic
applying negligence per se causes no great change in the           Beverage Code as “the attendant standard of conduct.” Id.
law because violating the statutory standard of conduct            at 312–13. Thus, based on both this Court's past practice
would usually also be negligence under a common law                and the observations of noted scholars, we conclude that the
reasonableness standard. See Praesel, 967 S.W.2d at 395;           absence of a relevant common law duty should be considered
Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex.1969); Rudes,          in deciding whether to apply negligence per se to the Family
324 S.W.2d at 204; Morris, The Role of Criminal Statutes           Code's reporting provision.
in Negligence Actions, 49 COLUM. L.REV.. 21, 34 (1949).
But recognizing a new, purely statutory duty “can have an          The court of appeals in this case listed several factors to
extreme effect upon the common law of negligence” when it          consider in deciding whether to apply negligence per se. See
allows a cause of action where the common law would not.           944 S.W.2d at 730 (citing Ratliff, Comment, Negligence Per
See Leonard, 23 SANTA CLARA L.REV. at 449 n. 92. In                Se in Texas, 41 TEX. L.REV. 104, 106 (1962)). According to
such a situation, applying negligence per se “bring[s] into        the court of appeals, the principal factors favoring negligence
existence a new type of tort liability.” Burnette v. Wahl, 284     per se are that the Legislature has determined that compliance
Or. 705, 588 P.2d 1105, 1109 (1978). The change tends to           with criminal statutes is practicable and desirable and that
be especially great when, as here, the statute criminalizes        criminal statutes give citizens notice of what conduct is
inaction rather than action. See generally Otis Eng'g, 668         required of them. See id. As considerations against negligence
S.W.2d at 309; 3 HARPER ET AL., THE LAW OF                         per se, the court of appeals cautioned that some penal statutes
TORTS § 18.6 (2d ed.1986); KEETON ET AL., PROSSER                  may be too obscure to put the public on notice, may impose
& KEETON ON THE LAW OF TORTS § 56, at 373–77                       liability without fault, or may lead to ruinous monetary
(5th ed.1984); Thayer, Public Wrong and Private Action, 27         liability for relatively minor offenses. See id. The first of
HARV. L.REV.. 317 (1914) (all discussing traditional tort          these factors is not helpful because it points the same way in
law distinction between misfeasance and nonfeasance).              every case: the very existence of a criminal statute implies a
                                                                   legislative judgment that its requirements are practicable and
Some commentators contend that the term “negligence per            desirable. The court of appeals' remaining factors, however,
se” does not even apply when the statute on which civil            are pertinent to our analysis.
liability is based corresponds to no common law duty. See



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Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

On the question of notice, this Court has held that one            all of the other acts of abuse and neglect covered by the
consideration bearing on whether to apply negligence per se is     reporting requirement, see TEX. FAM.CODE § 261.001(1),
whether the statute clearly defines the prohibited or required     (4) (defining “abuse” and “neglect”), are also felonies. See
conduct. See Praesel, 967 S.W.2d at 395; Carter, 584               TEX. PEN.CODE § 22.04 (injury to a child); id. § 22.041
S.W.2d at 278; RESTATEMENT (SECOND) OF TORTS §                     (abandoning or endangering child); id. § 22.011(a)(2), (f)
874A cmt. h(1). The Family Code's reporting requirement            (statutory rape). Even the lowest level of felony is punishable
is triggered when a person “has cause to believe that a            by 180 days to two years in jail and a $10,000 fine, see id.
child's physical or mental health or welfare has been or           § 12.35, and automatically deprives the offender of certain
may be adversely affected by abuse or neglect.” TEX.               civil rights such as the franchise, see TEX. ELEC.CODE §
FAM.CODE § 261.109(a). In this case, defendants allegedly          13.001(a)(4), eligibility for public office, see id. § 141.001(a)
were eyewitnesses to sexual abuse. Under these facts, there        (4), and the right to own a firearm, see TEX. PEN.CODE
is no question that they had cause to believe abuse was            § 46.04(a). By contrast, failure to report abuse or neglect,
occurring, and thus that the statute required them to make a       no matter how serious the underlying crime, is a class B
report. In many other cases, however, a person may become          misdemeanor punishable by no more than six months in jail
aware of a possible case of child abuse only through second-       and a $2,000 fine. See TEX. FAM.CODE § 261.109(b); TEX.
hand reports or ambiguous physical symptoms, and it is             PEN.CODE § 12.22. This evidence of legislative intent to
unclear whether these circumstances are “cause to believe”         penalize nonreporters far less severely than abusers weighs
that such conduct “may be” taking place. 6 See Scott, 906          against holding a person who fails to report suspected abuse
S.W.2d at 20. A statute that conditions the requirement to         civilly liable for the enormous damages that the abuser
report on these difficult judgment calls does not clearly          subsequently inflicts. The specter of disproportionate liability
define *308 what conduct is required in many conceivable           is particularly troubling when, as in the case of the reporting
                                                                   statute, it is combined with the likelihood of “broad and
situations. 7
                                                                   wide-ranging liability” by collateral wrongdoers that we
                                                                   condemned in Carter v. William Sommerville & Son, Inc., 584
The next factor the court of appeals considered was whether
                                                                   S.W.2d at 279.
applying negligence per se to the reporting statute would
create liability without fault. See 944 S.W.2d at 730. We agree
                                                                   Finally, in addition to the factors discussed by the court of
with the court of appeals that it would not, because the statute
                                                                   appeals, we have also looked to whether the injury resulted
criminalizes only the “knowing[ ]” failure to report. 8 See        directly or indirectly from the violation of the statute. See
id.; see also El Chico, 732 S.W.2d at 313 (holding under a         Praesel, 967 S.W.2d at 395. In Carter v. William Sommerville
similarly worded statute that “a liquor licensee is negligent      & Son, Inc., we refused to apply negligence per se liability
as a matter of law under the statute when he knowingly sells       to a provision of the Texas Motor Carrier Act making it a
an alcoholic beverage to an intoxicated person” (emphasis          misdemeanor to aid and abet any violation of the Act. See
added)). This characteristic of the statute weighs in favor of     Carter, 584 S.W.2d at 278–79. We concluded that the aiding
imposing civil liability.                                          and abetting section was “too far removed to be adopted as
                                                                   a standard” for civil liability, in part because “[i]t is only by
Our next consideration is whether negligence per se would          first finding a violation of some other section of the Act that
impose ruinous liability disproportionate to the seriousness       the court may then find a violation” of that *309 provision.
of the defendant's conduct. In analyzing this factor, the court    Carter, 584 S.W.2d at 279. Like the aiding and abetting
of appeals treated child abuse as the relevant conduct. See        provision in Carter, Family Code section 261.109 defines the
944 S.W.2d at 730 (“[T]he abuse of children has become             misdemeanor of failure to report child abuse in terms of the
notorious.”). The conduct criminalized by section 261.109,         wrongful act of a third party. Under Carter 's reasoning, the
however, is not child abuse but the failure to report child        indirect relationship between violation of such a statute and
abuse. Through its penal laws, the Legislature has expressed a     the plaintiff's ultimate injury is a factor against imposing tort
judgment that abuse and nonreporting deserve very different        liability.
legal consequences. The abuser in this case committed the
offense of aggravated sexual assault on a child under the          The lack of direct causation is not in itself dispositive; we
age of fourteen, a first degree felony carrying a penalty          have imposed civil liability for some statutory violations
of five to ninety-nine years in prison and a fine of up to         that caused the plaintiff's injury by facilitating the tort of
$10,000. See TEX. PEN.CODE §§ 22.021, 12.32. Almost


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Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

                                                                     In summary, we have considered the following factors
a third party. See El Chico, 732 S.W.2d at 312–13 (statute
prohibiting sale of alcohol to intoxicated person); Nixon,           regarding the application of negligence per se to the Family
690 S.W.2d at 548–49 (building ordinance requiring security          Code's child abuse reporting provision: (1) whether the statute
measures). But a reporting statute by definition places a fourth     is the sole source of any tort duty from the defendant to
party between the defendant and the plaintiff: the person or         the plaintiff or merely supplies a standard of conduct for an
agency to whom the defendant is required to make the report.         existing common law duty; (2) whether the statute puts the
Thus, the connection between the defendant's conduct and             public on notice by clearly defining the required conduct; (3)
the plaintiff's injury is significantly more attenuated in a case    whether the statute would impose liability without fault; (4)
based on failure to report than in Nixon or El Chico. We             whether negligence per se would result in ruinous damages
are not aware of any Texas case applying negligence per              disproportionate to the seriousness of the statutory violation,
se to a statute that, like the child abuse reporting provision,      particularly if the liability would fall on a broad and wide
interposes not one but two independent actors between the            range of collateral wrongdoers; and (5) whether the plaintiff's
plaintiff and the defendant.                                         injury is a direct or indirect result of the violation of the
                                                                     statute. Because a decision to impose negligence per se could
We conclude by noting that for a variety of reasons,                 not be limited to cases charging serious misconduct like
including many of those we have discussed, most other                the one at bar, but rather would impose immense potential
states with mandatory reporting statutes similar to Texas's          liability under an ill-defined standard on a broad class of
have concluded that the failure to report child abuse is             individuals whose relationship to the abuse was extremely
not negligence per se. See C.B. v. Bobo, 659 So.2d 98,               indirect, we hold that it is not appropriate to adopt Family
102 (Ala.1995); Fischer v. Metcalf, 543 So.2d 785, 790–              Code section 261.109(a) as establishing a duty and standard
91 (Fla.Dist.Ct.App.1989); Cechman v. Travis, 202 Ga.App.            of conduct in tort. Therefore, Mr. and Mrs. N. and their
                                                                     children may not maintain a claim for negligence per se or
255, 414 S.E.2d 282, 284 (1991); Borne v. Northwest
                                                                     gross negligence based on defendants' violation of the child
Allen County Sch. Corp., 532 N.E.2d 1196, 1202–03
                                                                     abuse reporting statute. Because plaintiffs did not appeal
(Ind.Ct.App.1989); Kansas State Bank & Trust Co. v.
Specialized Transp. Servs., Inc., 249 Kan. 348, 819 P.2d             the court of appeals' adverse decision on their common law
587, 604 (1991); Valtakis v. Putnam, 504 N.W.2d 264, 266             negligence claims, we do not consider whether Texas should
(Minn.Ct.App.1993); Bradley v. Ray, 904 S.W.2d 302, 312–             impose a common law duty to report or prevent child abuse.
14 (Mo.Ct.App.1995); Marquay v. Eno, 139 N.H. 708, 662
A.2d 272, 276–78 (1995). But see Landeros v. Flood, 17               For the foregoing reasons, we reverse the judgment of the
Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389, 396–97 (1976);           court of appeals and render judgment that plaintiffs take
Curran v. Walsh Jesuit High Sch., 99 Ohio App.3d 696, 651            nothing.
N.E.2d 1028, 1030 (1995); Doe v. Coffee County Bd. of Educ.,
852 S.W.2d 899, 909 (Tenn.Ct.App.1992).
                                                                     All Citations

                                                                     973 S.W.2d 301, 41 Tex. Sup. Ct. J. 1162


Footnotes
1       This Court was unable to address the negligence per se issue in Butcher for jurisdictional reasons. See Butcher v. Scott,
        906 S.W.2d 14, 16 (Tex.1995). This case thus presents our first opportunity to consider this question.
2       This mandatory reporting statute was enacted in 1971. See Act of May 24, 1971, 62d Leg., R.S., ch. 902, § 1, 1971 Tex.
        Gen. Laws 2790, 2791. Prior to that time, Texas did not require the reporting of child abuse, although there were statutes
        granting immunity from suit to doctors and other professionals who chose to report cases of suspected abuse. See Act
        of April 26, 1965, 59th Leg., R.S., ch. 117, 1965 Tex. Gen. Laws 277 (physicians); Act of May 5, 1969, 61st Leg., R.S.,
        ch. 219, 1969 Tex. Gen. Laws 637 (other professionals).
           The version of this provision in force at the time of the events in this case read “has been or may be adversely affected.”
           See 944 S.W.2d at 729 (quoting former TEX. FAM.CODE § 34.01(a)) (emphasis added). The Legislature deleted the
           italicized language in 1997. See Act of Sept. 1, 1997, 75th Leg., R.S., ch. 1022, § 65, 1997 Tex. Gen. Laws 3733,
           3760. However, the phrase “or may be” remains in the current version of § 261.109(a).




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Perry v. S.N., 973 S.W.2d 301 (1998)
41 Tex. Sup. Ct. J. 1162

3      This provision criminalizing the failure to report was added in 1973. See Act of May 17, 1973, 63d Leg., R.S., ch. 398,
       § 1, 1973 Tex. Gen. Laws 881.
4      At times, our opinions have included language suggesting that any statutory violation is automatically negligence per se.
       See, e.g., Southern Pac. Co. v. Castro, 493 S.W.2d 491, 497 (Tex.1973) (stating that to prove negligence per se, one
       must prove the unexcused violation of a penal standard). Yet these same opinions recognize the Restatement of Torts
       as the law of Texas on negligence per se, and the Restatement expressly states that the adoption of criminal statutes
       into tort law is a matter of judicial discretion: “The correct rule is ...: ‘The unexcused violation of a legislative enactment
       or an administrative regulation which is adopted by the court as defining the standard of conduct of the reasonable man,
       is negligence in itself.’ ” Southern Pac., 493 S.W.2d at 497 (emphasis added)(quoting RESTATEMENT (SECOND) OF
       TORTS § 288B (1965)); see also RESTATEMENT (SECOND) OF TORTS § 286 (1965) (“The court may adopt as the
       standard of conduct of a reasonable man the requirements of a legislative enactment ....”) (emphasis added); id. cmt.
       d (“Since the legislation has not so provided, the court is under no compulsion to accept it as defining any standard of
       conduct for purposes of a tort action.”).
5      A few courts in other jurisdictions have interpreted mandatory reporting statutes as intended to protect only the specific
       child the defendant suspects is being abused, not other potential victims of the same abuser. See Curran v. Walsh
       Jesuit High School, 99 Ohio App.3d 696, 651 N.E.2d 1028, 1030–31 (1995); Marcelletti v. Bathani, 198 Mich.App. 655,
       500 N.W.2d 124, 127 (1993). It is unclear from the pleadings whether B.N. and K.N. were among the children whom
       defendants saw being abused. But whether or not Curran and Marcelletti 's analysis applies to the Texas reporting statute,
       B.N. and K.N. are within the protected class on the facts of this case. According to the pleadings, defendants saw Daniel
       Keller take some of the children enrolled in the day care center out of the center into an adjoining room of the Kellers' home
       and sexually abuse them. This gave defendants “cause to believe” that the “physical or mental health or welfare” of all the
       children attending the day care center—not only the particular children they saw being abused on that occasion—“may
       be adversely affected by abuse or neglect.” See TEX. FAM.CODE § 261.109(a). Thus, the statute required defendants
       to make a report concerning all the children at the center.
6      Determining whether abuse is or may be occurring in a particular case is likely to be especially difficult for untrained
       laypersons. Texas is one of a minority of states that require any person who suspects child abuse to report it. See O'Brien
       & Flannery, The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse, 25 LOY. L.A. L.REV. .
       1, 24–25 & n. 127 (1991) (collecting statutes). Most states place such a requirement only on professionals who may be
       expected to know more than the average person about recognizing child abuse and who have a professional relationship
       with and responsibility for children. See id. at 19 n. 106 (collecting statutes); id. at 24. The Texas Family Code contains a
       separate mandatory reporting provision, not relevant here, specifically directed to members of certain professions. See
       TEX. FAM.CODE § 261.101(b).
7      We do not mean to suggest that section 261.109 is unconstitutionally vague. In fact, one court of appeals has already
       rejected an as-applied vagueness challenge to this provision. See Morris v. State, 833 S.W.2d 624, 627 (Tex.App.—
       Houston [14th Dist.] 1992, pet. ref'd), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993). A statute's lack
       of clarity need not rise to a constitutionally suspect level in order to be a factor in our determination of whether imposing
       negligence per se is appropriate.
8      Although the issue of strict liability is related to the problem of notice, see Village of Hoffman Estates v. Flipside, Hoffman
       Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), a statute may require scienter and yet fail to
       define clearly the prohibited conduct. Cf. Long v. State, 931 S.W.2d 285, 289 (Tex.Crim.App.1996).


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               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)




                     215 S.W.3d 559
                Court of Appeals of Texas,                                             *561 OPINION
                         Austin.
                                                                 DAVID PURYEAR, Justice.
     RAILROAD COMMISSION OF TEXAS and
                                                                 Our opinion and judgment issued on December 29, 2006, are
    Dos Republicas Resources Co., Inc., Appellants,
                                                                 withdrawn, and the following opinion is substituted.
                          v.
       Theodosia COPPOCK, Juanita Alvarado,                      Dos Republicas Resources Co., Inc. (“Dos Republicas”)
          Guadalupe Davila, and Kickapoo                         asked the Railroad Commission of Texas (the “Commission”)
        Traditional Tribe of Texas, Appellees.                   to extend its surface coal mining permit under the provisions
                                                                 of the Texas Surface Coal Mining and Reclamation Act
       No. 03–05–00097–CV.            |   Feb. 1, 2007.          codified in the natural resources code, but Theodosia
                                                                 Coppock, Juanita Alvarado, Guadalupe Davila, and Kickapoo
Synopsis
                                                                 Traditional Tribe of Texas (the “appellees”) opposed the
Background: Neighboring landowners appealed Railroad
                                                                 extension. Ultimately, the Commission granted the extension,
Commission's decision to extend coal mining company's
                                                                 and the appellees appealed the Commission's decision. The
surface coal mining permit. The 201st Judicial District Court,
                                                                 district court concluded that the Commission's basis for
Travis County, Scott H. Jenkins, J., entered judgment for
                                                                 granting the extension, namely the lack of a market for
landowners. Commission and company appealed.
                                                                 Dos Republicas to sell its coal, was not authorized under
                                                                 the natural resources code. See Tex. Nat. Res.Code Ann. §
                                                                 134.072 (West 2001). Dos Republicas and the Commission
Holdings: The Court of Appeals, David Puryear, J., held that:    appeal the district court's judgment, and we will reverse the
                                                                 court's judgment.
[1] Commission had the authority to grant company's request
for a permit extension, even though three-year deadline had
expired, and
                                                                                      BACKGROUND

[2] company could obtain permit extension due to                 In 1992, Dos Republicas applied to the Commission for a
unfavorable market conditions beyond the control of and          permit to allow it to engage in coal mining on a 2700–acre
without the fault or negligence of the company.                  tract in Eagle Pass, Texas, and the Commission approved the
                                                                 permit in 1994. However, Dos Republicas did not request that
                                                                 the permit be issued at that time.
Reversed and remanded.

                                                                 For years, Dos Republicas attempted to enter into an
Attorneys and Law Firms                                          agreement to sell its coal to the Comision Federal de
                                                                 Electricidad (“CFE”), a state-owned electricity provider in
*560 Chesley N. Blevins, Rebecca L. Fink, Lloyd Gosselink        Mexico that operates two coal-fired plants near Eagle Pass.
Blevins Rochelle & Townsend, P.C., Nathan M. Bigbee,             In 1999, CFE became concerned about the financial security
Assistant Attorney General, Natural Resources Division,          of the mining company that had been its coal supplier. As
Austin, for appellants.                                          a result, it alerted Dos Republicas that, in early 2000, it
                                                                 would be issuing a request for proposals asking companies
Enrique Valdivia, Texas RioGrande Legal Aid, San Antonio,        to submit bids offering to supply CFE with coal and asked
David O. Frederick, Lowere & Frederick, John G. Soule,           Dos Republicas to issue a bid. To ensure that it would
Scott Douglass & McConnico, L.L.P., Austin, for appellees.       have a supply when necessary, Dos Republicas asked the
                                                                 Commission to issue the permit it had previously approved,
Before Justices PATTERSON, PURYEAR and SMITH. *                  and the Commission issued the permit in April 2000.




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Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


Due to a number of political changes and pressure from            opposed the extension. 3 She claimed that, because the
various interested parties, CFE never issued its request for      three-year deadline had passed by the time of the hearing,
proposals. Employees from mines in Mexico complained that         the Commission had no authority to grant an extension.
importing coal from Texas might eliminate their jobs. In          Alternatively, she argued that the Commission should
addition, during this time, the governing political party in      deny the extension because the conditions allowing for
Mexico changed, and the leaders of CFE were replaced.             an extension found in section 134.072 were not satisfied.
                                                                  Specifically, she asserted that the absence of a market in
Dos Republicas continued its efforts to enter into an             which Dos Republicas could sell its coal could not justify an
agreement with CFE, and, in 2001, CFE again indicated             extension.
that it would issue a request for proposals. However, as had
happened previously, no request was ever issued. Instead,         The hearing examiner concluded that the Commission had
CFE entered into a long-term supply contract with a Mexican       jurisdiction to consider the request for an extension because
mining company, Coahuila Industrial Minera (“Coahuila”).          the request for an extension was filed prior to the three-year
                                                                  deadline. Further, she concluded that the Commission should
Prior to and after CFE entered into a contract with Coahuila,     grant the extension because Dos Republicas's failure to begin
Dos Republicas unsuccessfully attempted to find other market      mining was due to *563 the absence of a market for the
options for selling its coal. Even though Dos Republicas          coal and that the market condition was “beyond the control
asked the Commission to issue it a mining permit, it never        and without the fault or negligence” of Dos Republicas. The
began mining coal at the Eagle Pass mine and, eventually,         Commission adopted the examiner's proposal for decision and
filed an application with the Commission seeking to terminate     granted the extension.
its permit. Although Dos Republicas asked that its permit be
terminated, the natural resources code also contains an early     The appellees appealed the Commission's order to the
termination provision mandating that a mining permit will         district court. See Tex. Gov't Code Ann. § 2001.171 (West
expire within three years of *562 its issuance if the permit      2000) (person who has exhausted all administrative remedies
holder has not begun “surface coal mining” operations by that     and is aggrieved by final agency decision is entitled to
date. Tex. Nat. Res.Code Ann. § 134.072(a); 1 see also id. §      judicial review). In its judgment, the district court concluded
134.004(20) (West 2001) (definition of “surface coal mining       that the Commission had jurisdiction over the extension
operations”). Dos Republicas filed its application to terminate   request because the Commission has authority over a
its permit shortly before the three-year termination date.        request as long as it is filed within three years of the
                                                                  permit's issuance. However, the court also concluded that
Just before the three-year termination deadline passed,           “[s]ubsection 134.072(b) does not authorize the Commission
Coahuila contacted Dos Republicas and indicated that it was       to grant an extension based upon the absence of a market or
interested in purchasing the Eagle Pass mining operation.         other economic, political, or social conditions that are beyond
Consequently, Dos Republicas filed a request to withdraw its      the control of and without the fault or negligence of the
application to terminate the permit and also filed a request to   permit holder.” Dos Republicas and the Commission appeal
extend its permit beyond the three-year deadline. The natural     the district court's judgment.
resources code allows the Commission to grant “reasonable
extensions” if it is shown that the extensions are necessary
because of:
                                                                                  STANDARD OF REVIEW
  (1) litigation that precludes the beginning of operations or
                                                                  In addressing the issues raised in this appeal by the
  threatens substantial economic loss to the permit holder; or
                                                                  appellants and the appellees, we must necessarily construe the
  (2) conditions beyond the control and without the fault or      relevant provisions of the natural resources code. Statutory
  negligence of the permit holder.                                construction is a question of law, which we review de novo.
                                                                  State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). In
Id. § 134.072(b). 2                                               determining the meaning of a statute, our primary purpose
                                                                  is to determine the legislature's intent when enacting the
The Commission referred the matter to a hearings examiner.        statute, and we begin with the language used in the statute. Id.
Coppock, a landowner near the Eagle Pass property,                Every word in a statute is presumed to have been used for a


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Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


purpose and every word excluded is presumed to have been            [1] On appeal, the appellees assert that the Commission
excluded for a purpose. Laidlaw Waste Sys., Inc. v. City of        lacked the authority to grant the permit extension because
Wilmer, 904 S.W.2d 656, 659 (Tex.1995). Further, we look           the three-year deadline specified in the statute had expired.
to the entire act and do not look at a single provision isolated   Before we address this issue, we note that there is some
from the remainder of the act. Watts v. City of Houston,           question about whether the appellees may make this cross-
126 S.W.3d 97, 100 (Tex.App.-Houston [1st Dist.] 2003, no          claim without first filing a notice of appeal. The Commission
pet.); see also Tex. Gov't Code Ann. § 311.021(2) (West            and Dos Republicas contend that the appellees may not
2005) (presume that entire statute was meant to be effective).     bring this cross-claim on appeal because they failed to file
We should not adopt a construction of a statute that will          a notice of appeal. See Tex.R.App. P. 25.1 (party who seeks
render the statute meaningless or lead to absurd results. See      to alter trial court's judgment must file notice of appeal),
Watts, 126 S.W.3d at 100; see also Tex. Gov't Code Ann. §          26.1 (specifying deadlines for filing notices of appeal). The
311.021(3) (West 2005) (in construing statutes, we presume         appellees, on the other hand, insist that this issue may be
that just and reasonable result was intended). Finally, the        considered on appeal. Specifically, they assert that it was
construction of a statute by the administrative agency charged     unnecessary for them to file a notice of appeal because they
with its enforcement is entitled to serious consideration so       are not seeking more favorable relief than that granted by
long as the construction is reasonable and does not contradict     the district court. See First Gen. Realty Corp. v. Maryland
the plain language of the statute. Tarrant Appraisal Dist. v.      Cas. Co., 981 S.W.2d 495, 503 (Tex.App.-Austin 1998, pet.
Moore, 845 S.W.2d 820, 823 (Tex.1993); Anderson–Clayton            denied) (because appellees' arguments did not ask for relief
Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166,             greater than that granted by trial court, appellees were not
178 (Tex.App.-Austin 2004, pet. denied) (even if there are         required to file notice of appeal). Rather, they argue that they
other reasonable interpretations, we will accept agency's          are simply seeking to affirm the final judgment of the district
construction of statute if it is consistent with language          court and that they raise this issue merely as an alternative
and purpose of statute); see also Tex. Gov't Code Ann. §           ground for affirming the district court's judgment. See Helton
311.023(6) (West 2005) (in construing statutes, courts may         v. Railroad Comm'n, 126 S.W.3d 111, 119–20 (Tex.App.-
consider administrative construction of statute regardless of      Houston [1st Dist.] 2003, pet. denied) (noting distinction
whether statute is considered ambiguous). This is particularly     between cross-points that require separate notice of appeal
true when the statute involves a complex subject matter.           and claims that merely seek to raise alternate grounds
Buddy Gregg Motor Homes v. Motor Vehicle Bd., 156 S.W.3d           opposing recovery by appealing party). In the interests of
91, 99 (Tex.App.-Austin 2004, pet. denied). However, for           justice, we will address their argument.
nontechnical questions of law and other questions not lying
within an agency's expertise, courts do not defer to an             [2] The appellees insist that Dos Republicas's permit
agency's interpretation. Id.                                       terminated automatically on April 11, 2003, because Dos
                                                                   Republicas had not commenced surface mining and had not
                                                                   obtained an extension by that date. In support of this assertion,
                                                                   the appellees contend that nothing in the natural resources
                       DISCUSSION
                                                                   code provides that requesting an extension within the three-
On appeal, the Commission and Dos Republicas contend that          year deadline will toll the termination deadline or allows for
the district court erred when it reversed the Commission's         a conditional extension pending a final determination by the
 *564 order granting Dos Republicas's extension because            Commission. In response, the Commission argues that it may
the extension was authorized by the natural resources code.        grant an extension request after the three-year deadline as
In response, the appellees assert that the extension was           long as the request was filed within the three-year cutoff.
not authorized by statute and that the Commission did not
have the authority to grant the extension after the three-year     The Commission's interpretation of the statute is consistent
deadline.                                                          with the language of the statute. Nothing in the natural
                                                                   resources code necessitates that the Commission rule on an
                                                                   extension request before the three-year deadline passes in
The Commission Possessed Authority to Address Dos                  order for the extension to be effective. See Tex. Nat. Res.Code
Republicas's Extension Request                                     Ann. § 134.072. The lack of a Commission deadline for
                                                                   issuing its decision is instructive given that the code provides



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Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


specific deadlines for agency action in other contexts. For       may not be opposed, hearings may or may not be scheduled
example, section 134.080 of the code mandates that the            on the proposed extension, and there is no statutory deadline
Commission issue a decision regarding a permit revision filed     for the Commission releasing its decision, this interpretation
by a permit holder within 90 days of receiving the application    would lead to unfair results. For example, under the appellees'
for revision. See id. § 134.080 (West 2001); see also Tex.        interpretation, a permit holder who files for an extension just
Gov't Code Ann. § 2001.146(c) (West 2000) (agency must act        prior to the termination deadline would receive an extension
on motion for rehearing within 45 days or motion is overruled     as long as the Commission issued the extension by the three-
by operation of law).                                             year deadline, whereas a permit holder who files a request
                                                                  for an extension well in advance of the deadline would not
 *565 Moreover, the code does not mandate that a permit           receive an extension if the Commission is unable to grant
holder file an extension request within a given time prior        the extension by the cut-off date. 4 We cannot adopt an
to the termination date in order to allow the Commission to       interpretation that would lead to such arbitrary results. See
fully consider the request. The lack of a specific deadline by    Watts, 126 S.W.3d at 100.
which a permit holder must file a request is noteworthy when
looking at other code provisions. The section concerning          This construction is also supported by the effect of the
permit renewals explicitly provides a deadline by which an        extension provisions. Cf. Tex. Gov't Code Ann. § 311.023(1)
applicant must file a permit renewal application that is prior    (West 2005) (in interpreting statute, courts may consider
to the permit expiration date. Specifically, section 134.078      “object sought to be attained”). Section 134.072 terminates
provides as follows:                                              a permit, regardless of the length of the permit's effective
                                                                  term, within three years of the permit's issuance if the permit
            Application for permit renewal must
                                                                  holder has not begun mining operations. Tex. Nat. Res.Code
            be made not later than the 120th day
                                                                  Ann. § 134.072; see also id. § 134.071 (West 2001) (allowing
            before the date the existing permit
                                                                  Commission to issue permits with terms of five years or
            expires.
                                                                  more). Given that section 134.072 can shorten the effective
Tex. Nat. Res.Code Ann. § 134.078 (West 2001); see also           term of a mining permit by imposing a three-year deadline,
16 Tex. Admin. Code § 12.106(b)(2) (2006) (requiring               *566 the Commission's interpretation that a request for an
permit holder to file permit renewal 180 days before permit       extension is effective if filed within the three-year deadline
expires), (b)(3) (2006) (requiring permit holder to file permit   seems logical and equitable.
revision application 180 days before it expects to revise its
operations). The absence of a similarly worded deadline in the    For all the reasons previously given, we conclude that the
extension context supports the Commission's interpretation,       Commission's interpretation of the statute is consistent with
which allows for the filing of an extension request up to the     section 134.072 and further conclude that the Commission
three-year termination deadline. See Laidlaw Waste Sys., Inc.,    had the authority to grant Dos Repulicas's extension request
904 S.W.2d at 659 (presume that every word omitted was            even though the three-year termination date had passed.
purposefully excluded).                                           Accordingly, we affirm that portion of the district court's
                                                                  judgment.
Furthermore, if the appellees' interpretation of the statute
were correct, applicants would have the onerous task of
                                                                  The Statute Allows Extension Requests to be Granted
estimating how far in advance they would need to file an
                                                                  for Market Reasons
extension request in order to allow the Commission time
                                                                   [3] In their only issue on appeal, the Commission and Dos
to fully review the application and issue its decision prior
                                                                  Republicas contend that the district court erred by reversing
to the expiration of the three-year deadline. In addition,
                                                                  the Commission's order. Specifically, they argue that the
the appellees' construction would effectively eliminate
                                                                  absence of a market for the coal present at the Eagle Pass
extensions for events occurring between the time a permit
                                                                  mine was a condition outside of Dos Republicas's control that
holder should file an extension request to ensure that a timely
                                                                  occurred “in the absence of any fault or negligence” on behalf
decision is issued and the three-year termination date. Given
                                                                  of Dos Republicas and that, therefore, the Commission was
that the possible reasons for requesting an extension might
vary in complexity, the amount of time necessary for full         authorized by statute to grant the extension. 5
consideration of a request will vary, the extension may or


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Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


The appellees, on the other hand, contend that the district      distinguishable. The appellees refer to Day v. Tenneco, Inc.,
court correctly concluded that the Commission was not            696 F.Supp. 233 (S.D.Miss.1988); Huffines v. Swor Sand
authorized to issue an extension to Dos Republicas. First, the   & Gravel Co., Inc., 750 S.W.2d 38 (Tex.App.-Fort Worth
appellees argue that the language of subsection 134.072(b)       1988, no writ); and Valero Transmission Co. v. Mitchell
(2), which is the subsection relevant in this appeal, acts       Energy Corp., 743 S.W.2d 658 (Tex.App.-Houston [1st Dist.]
as a force majeure provision that prohibits an extension         1987, no writ), for the proposition that unfavorable market
unless the permit holder has physically been prevented from      conditions cannot justify a permit extension under subsection
commencing operations due to “conditions beyond its control      (b)(2). Although the courts in these cases did conclude that
and without its fault or negligence.” Further, the appellees     poor market conditions do not excuse a party's obligation
contend that Dos Republicas was not actually prevented from      to perform under a contract, see Day, 696 F.Supp. at 236;
mining and, therefore, insist that Dos Republicas should not     Huffines, 750 S.W.2d at 40; and Valero, 743 S.W.2d at 663,
have been given an extension for its conscious choice not to     this case does not involve a contractual dispute or a breach
begin mining.                                                    of contract claim. Furthermore, in two of the cases cited, Day
                                                                 and Valero, the contracts at issue specifically contained a
 [4] [5] We disagree with the appellees' assertion. There is force majeure clause that the courts were required to interpret:
no requirement listed in 134.072 that a permit holder must be    there is no comparable provision in this case. 6
“physically” prevented from engaging in mining operations to
obtain an extension. Further, we have been unable to find any     [6] Second, the appellees analogize the effect of Dos
case applying the doctrine of force majeure to the issuance      Republicas's failure to begin mining operations to the effect
of a permit by a state regulatory authority. The doctrine        of a lessee's failure to undertake physical efforts to drill under
is designed to protect parties to a contract and excuses a       the terms of an oil and gas lease. Specifically, they contend
party's nonperformance because of events outside the control     that, under an oil and gas lease, a lessee's failure to engage
of the parties. See Black's Law Dictionary 445 (abridged         in physical activity on the leased property will terminate the
6th ed.1991); see also Perlman v. Pioneer Ltd. P'ship, 918
                                                                 lease at the end of the lease's primary term 7 and will not
F.2d 1244, 1248 n. 5 (5th Cir.1990) (force majeure describes
                                                                 allow for renewal, and they insist that a similar result should
particular type of event, which may excuse performance
                                                                 apply here. See Smith & Weaver, Texas Law of Oil & Gas §
under contract). The scope and applicability of the doctrine is
                                                                 4.5 (2000) (“A lessee cannot safely rely upon activities which
dependent upon the terms specified in a contract. See Zurich
                                                                 do not involve actual physical activity on the land such as ...
Am. Ins. Co. v. Hunt Petroleum (AEC), Inc., 157 S.W.3d 462,
                                                                 applying ... for a drilling permit.... [T]he reported cases speak
466 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also
                                                                 in terms of actual physical contact with the leased premises.”).
Perlman, 918 F.2d at 1248 n. 5 (should look to language of
contract to determine parties' intent concerning whether event
                                                                 However, the appellees have not referred us to cases holding
complained of excuses performance); Sun Operating Ltd.
                                                                 that a permit holder's failure to engage in mining activities
P'ship v. Holt, 984 S.W.2d 277, 282–83 (Tex.App.-Amarillo
                                                                 is equivalent to a lessee's failure to drill under an oil and
1998, pet. denied) (much of historic meaning of phrase force
                                                                 gas lease, and we see no reason to adopt such a rule. The
majeure is gone and, therefore, scope and application of
                                                                 circumstances and expectations surrounding the issuance of
doctrine is “utterly dependent upon the terms of the contract in
                                                                 a permit are remarkably different than those present during
which it appears”); 30 Samuel Williston & Richard A. Lord,
                                                                 the formation of an oil and gas lease. Unlike a mining permit,
A Treatise on the Law of Contracts § 77:31 (4th ed. 1990
                                                                 an oil and gas lease involves two parties to an agreement,
& Supp.2004) (specific language of clause indicates what
                                                                 not a single party and a regulatory agency. Because *568
events will excuse performance and typical clause *567
                                                                 the issuance of a permit by the Commission does not involve
states that party's performance is subject to “acts of God, war,
                                                                 two parties entering into a contract for mutual economic
government regulation, terrorism, disaster, strikes ... civil
                                                                 benefit, the need for a termination due to non-production is
disorder, curtailment of transportation facilities, or any other
                                                                 not as pressing because the Commission does not receive an
emergency beyond the parties control”).
                                                                 economic benefit from a mining company corresponding to
                                                                 the amount of coal mined. Cf. id. (if lessee under oil and
In addition, the cases the appellees refer to in support of
                                                                 gas lease does not begin drilling, it is obligated to pay lessor
their assertion that, under the doctrine of force majeure,
                                                                 delay rental). Further, the economic effects of a coal mining
market conditions cannot justify a permit extension are
                                                                 company's actions are only one factor for the Commission


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Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


to consider when issuing, extending, or terminating a permit;       it believes an extension is necessary due to “conditions
as highlighted by the appellees, the Commission is also             beyond the control and without the fault or negligence of
charged with considering, among other things, the potential         the permit holder.” Tex. Nat. Res.Code § 134.072(b)(2);
environmental effects from coal mining and the effects on           see also Webster's Seventh New Collegiate Dictionary 235
neighboring landowners. See Tex. Nat. Res.Code Ann. §               (7th ed.1973) (“condition” means “a restricting or modifying
134.003 (West 2001).                                                factor”). On its face, this language is broad enough to justify
                                                                    the Commission's extension for market conditions that are not
Third, the appellees urge that, because Dos Republicas was          caused by the permit holder.
aware that it did not have a market established when it filed
for a permit in 1994 and was aware of the social and political      Further, we disagree with the appellees' contention that the
instability present in Mexico when it asked for the permit to be    inclusion of the phrase *569 “substantial economic loss”
issued, Dos Republicas assumed those market risks knowing           in subsection 134.072(b)(1) and its exclusion in subsection
that it was obligated to begin mining operations within three       134.072(b)(2) indicates the legislature's intent that economic
years or lose the permit. Accordingly, they contend that the        conditions, including the lack of a viable coal market, cannot
permit should not be extended because the potential market          be used to justify a permit extension. See Tex. Nat. Res.Code
problems were foreseeable.                                          Ann. § 134.072(b); see also Mid–Century Ins. Co. of Tex.
                                                                    v. Kidd, 997 S.W.2d 265, 274 (Tex.1999) ( “doctrine of
We disagree with the appellees' assertion that the fact that        expressio unius est exclusio alterius is simply an aid .... [and]
the event was foreseeable bars invocation of the extension          [a]s a rule of reason and logic, it should not be mechanically
provision. There is no requirement in section 134.072               applied to compel an unreasonable interpretation”). The
mandating that conditions justifying a permit extension must        subsections apply in different contexts. Subsection (b)(1)
have been unforeseeable to the permit holder. See id. §             applies only to situations where the permit holder is involved
134.072. Moreover, many of the conditions that the appellees        in litigation that either precludes the beginning of mining
insist would justify a permit extension will no doubt be            or threatens economic loss to the permit holder regardless
foreseeable to a certain extent, including natural disasters and    of whether the litigation was initiated due to some fault of
individuals filing suit against the company.                        the permit holder. Subsection (b)(2) applies when conditions,
                                                                    which are not caused by the permit holder, are present
Fourth, the appellees note that subsection 134.072(b)(2)            and warrant an extension. Unlike subsection (b)(1), which
does not specifically authorize an extension for economic           is expressly limited to instances where the permit holder
reasons but note that subsection 134.072(b)(1) does allow for       is involved in some type of litigation, subsection (b)(2)
extension due to economic concerns. Subsection 134.072(b)           applies to a broader number of situations and provides no
(1) allows the Commission to grant an extension if the permit       express limitation on its applicability except that the permit
holder is involved in “litigation that precludes the beginning      holder cannot be the cause of the condition resulting in the
of operations or threatens substantial economic loss.” Id. §        failure to mine. Due to the distinct situations in which these
134.072(b)(1) (emphasis added). The appellees insist that if        statutes apply, we believe that the legislature's failure to
potential economic loss was a factor to be considered under         include the phrase “economic loss” in subsection (b)(2) is
subsection (b)(2), the legislature would have incorporated          no indication that the lack of a market cannot be used to
that language into the section. Cf. Laidlaw Waste Sys., Inc.,       justify an extension. The legislature specified that economic
904 S.W.2d at 659 (Tex.1995) (when legislature employs              conditions are permissible considerations when determining
term in one section of statute and excludes it from another,        whether to grant an extension under the first part of subsection
term should not be implied into section it was excluded from).      134.072(b). We can discern no reason to exclude economic
                                                                    conditions as permissible factors for the Commission to
We cannot adopt the appellees' construction of section              consider when determining whether to grant an extension
134.072. Although subsection 134.072(b)(2) does not                 under the more broadly written second part of subsection
specifically list “economic conditions” or “the lack of a           134.072(b).
market” as permissible reasons justifying a permit extension,
the subsection does not list any specific situation justifying an   Finally, the appellees refer to federal case law and to the
extension. Instead, the subsection uses very broad language         legislative history accompanying the federal counterpart to
authorizing the Commission to grant an extension when               the Texas Surface Coal Mining and Reclamation Act as



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               6
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


support for the proposition that market conditions cannot          on maintaining current environmental reclamation standards
justify an extension. First, the appellees refer to Shawnee Coal   and the fact that the Texas reclamation regulations in effect
Co. v. Andrus, 661 F.2d 1083 (6th Cir.1981). In Shawnee,           when Dos Republicas first obtained its permit are different
the Office of Surface Mining, Reclamation, and Enforcement         from the regulations in effect now, the appellees insist that
(the “Office”) concluded that Shawnee was in violation of the      Dos Republicas's permit should not have been extended for
Act because it had stockpiles of coal products that released       economic reasons. Cf. 30 U.S.C.A. § 1201(d) (expansion of
toxic runoff and ordered Shawnee to comply with the Act            coal mining requires establishment of “appropriate standards
and its accompanying regulations. The district court granted       to minimize damage to the environment”), (k) (West
an injunction in favor of Shawnee preventing enforcement           1986) (Act is necessary to “mitigate adverse environmental
of the Office's orders, but the Sixth Circuit reversed because     effects”).
Shawnee had not exhausted its administrative remedies prior
to filing suit. Shawnee Coal Co., 661 F.2d at 1092. During a       However, the fact that the federal statute was enacted with
subsequent administrative proceeding, Shawnee argued that          a focus on implementing current environmental reclamation
it was unable to comply with the Office's orders because           standards does not mandate a conclusion that a permit
it could not sell the stockpiled coal products due to a            cannot be extended for market reasons under the Texas
depressed market. See Coalex Report 305 available at http://       statute. If anything, the focus on reclamation standards
www.osmre. gov/coalex/coalex305.htm (last modified Mar.            indicates the need for agency expertise in determining
24, 1999). The administrative law judge concluded that             what standards to enforce and whether a permit should be
Shawnee had to either comply with the regulations in question      extended. Furthermore, the administrative code authorizes the
or no longer conduct operations. Id.                               Commission to review an existing permit and modify the
                                                                   permit's provisions to ensure compliance with the Surface
The appellees' reliance on this case is misplaced. Shawnee         Mining and Reclamation Act and the relevant administrative
was ordered by the Office to comply with an environmental          code provisions. See 16 Tex. Admin. Code § 12.225 (2006).
regulation relating to surface coal mining and subsequently        Therefore, the Commission can compel a permit holder to
sought injunctive relief from having to comply with the            comply with more recent reclamation requirements prior to
order. Dos Republicas has not failed to comply with nor            the permit's termination.
has it been ordered to comply with a regulation. Further,
it is not seeking injunctive relief from compliance with an        Dos Republicas and the Commission's assertion that
environmental regulation. Rather, it is *570 attempting to         the Commission may consider market conditions when
extend the termination date of its mining permit, which is an      determining whether to grant an extension is also supported
action authorized by the natural resources code.                   by the broad authority the legislature bestowed upon the
                                                                   Commission. The natural resources code specifies that
Next, the appellees refer to the legislative history               the Commission has been granted exclusive jurisdiction
accompanying the Surface Mining Control and Reclamation            over surface coal mining and reclamation activities, has
Act. Like the Texas statute, the federal statute also provides     been charged with enforcing the relevant portions of the
that a permit will terminate within three years if no mining       code, and has been given the authority to issue rules
activity is undertaken but allows a permit to be extended          pertaining to mining and reclamation activities that are
for reasons similar to those articulated in section 134.072.       consistent with the code. See Tex. Nat. Res.Code Ann.
See 30 U.S.C.A. § 1256(c) (West 1986); see also id. § 1253         §§ 134.011 (Commission given broad powers, including
(West 1986 & Supp.2006) (states may obtain jurisdiction over       power to adopt rules, issue and revoke permits, conduct
mining if states develop program capable of implementing           hearings, issue orders requiring miners to take certain actions,
Act). The Senate Committee's 1977 analysis of the act              and order cessation of mining activities), 134.012(a)(1)
recognized that permits may be issued and renewed without          (Commission has exclusive jurisdiction), 134.013 (West
operations being undertaken and specified that one of the          2001) (Commission required to adopt rules relating to surface
reasons for the three-year deadline is to ensure “that no one      coal mining and reclamation), 134.161–.181 (West 2001)
will be locked into outdated reclamation requirements” that        (enforcement powers of Commission). It has also been
were in effect when the permit was issued. S.Rep. No. 95–          specifically charged with determining whether a permit
128, at 74 (1977), U.S.Code Cong. & Admin.News 1977,               extension should be granted. Moreover, the two types
593, 612. Based on the federal legislative history's emphasis      of circumstances described by section 134.072 as *571



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             7
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


                                                                   should be “left to the agency created to centralize expertise
justifying an extension are broadly written. Accordingly, the
                                                                   in this area and granted broad authority concerning just
Commission's interpretation of section 134.072 is entitled to
                                                                   such matters”). Accordingly, deference to the Commission's
judicial respect. See Hammack v. Public Util. Comm'n of Tex.,
                                                                   expertise regarding the conditions warranting an extension is
131 S.W.3d 713, 723 (Tex.App.-Austin 2004, pet. denied);
                                                                   appropriate.
see also Moore, 845 S.W.2d at 823.

                                                                   For all the reasons previously given, we conclude that the
Furthermore, the appellees' arguments ignore the need for
                                                                   Commission's interpretation of section 134.072 as allowing
agency expertise in determining whether a permit extension
should be granted. See Hammack, 131 S.W.3d at 723                  for a permit extension due to unfavorable market conditions
(legislature bestows powers upon agency with idea that             “beyond the control and without the fault or negligence of
its goals will be more effectively realized by employing           the permit holder” is consistent with the plain language of
agency's “specialized judgment, knowledge, and expertise”).        the statute. Accordingly, we conclude that the Commission
The code specifies that the Commission “may” grant an              did not exceed its authority when it granted Dos Republicas's
extension and further states that, in determining whether to       extension request because of unfavorable market conditions.
grant an extension, the Commission must consider whether           Therefore, we sustain Dos Republicas and the Commission's
the permit holder's failure to mine is the result of events        issue on appeal.
beyond the control of the permit holder and must determine
whether granting the extension is “necessary.” See Tex.
Nat. Res.Code Ann. § 134.072(b)(2); see also Tex. Gov't                                  CONCLUSION
Code Ann. § 311.016(1) (West 2005) (word “may” creates
discretionary authority). If the Commission determines that        Having concluded that the Commission had the authority to
an extension is necessary, the agency must also determine          issue Dos Republicas's extension and having sustained Dos
a “reasonable” extension time. Tex. Nat. Res.Code Ann.             Republicas and the Commission's issue on appeal, we reverse
§ 134.072(b). These determinations necessarily involve an          the judgment of the district court and remand the case for
assessment of the circumstances surrounding the permit             further proceedings consistent with this opinion.
holder's activities and knowledge of the factual situations that
might justify a permit extension. Cf. State v. Public Util.
                                                                   All Citations
Comm'n, 883 S.W.2d 190, 195 n. 6 (Tex.1994) (determination
of whether something should be considered capital or expense       215 S.W.3d 559


Footnotes
*      Bea Ann Smith, Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b)
       (West 1998).
1      Subsection 134.072(a) reads as follows:
            A permit terminates if the permit holder has not begun the surface coal mining operation covered by the permit on
            or before the third anniversary of the date on which the period for which the permit is issued begins.
         Tex. Nat. Res.Code Ann. § 134.072(a) (West 2001).
2      The administrative rule interpreting section 134.072 contains nearly identical language. It provides:
            (b) Automatic termination shall occur as follows:
            (1) a permit shall terminate, if the permittee has not begun the surface coal mining and reclamation operation covered
            by the permit within 3 years of the issuance of the permit;
            (2) the Commission may grant reasonable extensions of time for commencement of these operations, upon receipt
            of a written statement showing that such extensions of time are necessary, if:
               (A) litigation precludes the commencement or threatens substantial economic loss to the permittee; or
               (B) there are conditions beyond the control and without the fault or negligence of the permittee
         16 Tex. Admin. Code § 12.219(b) (2006). Because the rule is nearly identical to the statute, we will limit our discussion
         to the statute.
3      Coppock owns a cattle ranch near Dos Republicas's proposed mine site. She opposed the extension because she was
       concerned about how mining operations might affect the groundwater under her ranch. The remaining appellees—Juanita




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            8
Railroad Com'n of Texas v. Coppock, 215 S.W.3d 559 (2007)


      Alvarado, Guadalupe Davila, and Kickapoo Traditional Tribe of Texas—did not intervene until after the hearing examiner's
      proposal for decision was issued.
4     In this case, almost a year passed between Dos Republicas's filing for an extension and the Commission's decision
      granting the extension.
5     Whether the Commission's order was supported by substantial evidence is not at issue in this case. For this reason, we
      focus solely on whether the Commission exceeded its statutory authority by issuing the extension.
6     The appellees also assert that in Day v. Tenneco, Inc., the Mississippi court concluded that market conditions cannot
      be used to excuse a party's performance under a statute. 696 F.Supp. 233, 235–36 (S.D.Miss.1988). The statute listed
      various events that would excuse a party's nonperformance under a contract and included a catch-all phrase for events
      “beyond the control of such party.” See id. at 235–36 (citing former Miss.Code Ann. § 75–2–617 (1972)). However, as
      discussed previously, this case does not involve a contract dispute, and Dos Republicas is not attempting to avoid an
      obligation by invoking a statute excusing performance under a contract.
7     A primary term is “a period of time at the end of which the [leasehold] estate granted will terminate but which estate may
      be extended by some other provision, usually one for production.” Fox v. Thoreson, 398 S.W.2d 88, 91 (Tex.1966); see
      also Eastern Energy, Inc. v. SBY P'ship, 750 S.W.2d 5, 6 (Tex.App.-Houston [1st Dist.] 1988, no writ) (“primary term of
      the lease is the maximum period of time for which the lessee can maintain lease rights without drilling”).


End of Document                                              © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             9
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)
56 Tex. Sup. Ct. J. 295


                                                                  *677 Rock W.A. Owens, Assistant Harris County Attorney,
                     398 S.W.3d 676                              for Amicus Curiae Harris County, Texas.
                 Supreme Court of Texas.
                                                                 Chesley N. Blevins, Jackson Walker LLP, Austin, TX, for
                SOUTHERN CRUSHED                                 Amicus Curiae Texas Aggregates & Concrete Association.
              CONCRETE, LLC, Petitioner,
                        v.                                       Scott N. Houston, Texas Municipal League, Austin, TX, for
            CITY OF HOUSTON, Respondent.                         Amicus Curiae Texas Municipal League.

           No. 11–0270. | Argued Oct. 15,                        Opinion
         2012. | Delivered Feb. 15, 2013.                        Justice LEHRMANN delivered the opinion of the Court.
          | Rehearing Denied June 13, 2013.
                                                                 We must decide whether the Texas Clean Air Act (TCAA)
Synopsis                                                         preempts a Houston ordinance. The City denied Southern
Background: Operator of portable concrete crushing facility,     Crushed Concrete's (SCC) municipal permit application to
which had received an air quality permit from the                move a concrete-crushing facility to a new location, even
Commission on Environmental Quality (CEQ), brought               though the Texas Commission on Environmental Quality
action against city after it denied operator's application for   had previously issued a permit authorizing construction of
a municipal permit, seeking a declaration that the ordinance     the facility at the proposed location, because the concrete-
was preempted and an injunction against its enforcement. The     crushing operations would violate the Ordinance's location
333rd District Court, Harris County, Joseph J. Halbach Jr.,      restriction. The TCAA provides that “[a]n ordinance enacted
J., granted city summary judgment, and operator appealed.        by a municipality ... may not make unlawful a condition
The Houston Court of Appeals, Fourteenth District, Tracy         or act approved or authorized under [the TCAA] or the
Christopher, J., 402 S.W.3d 1, 2010 WL 4638417, affirmed.        [C]ommission's rules or orders.” TEX. HEALTH & SAFETY
Operator sought review which was granted.                        CODE § 382.113(b). Because the Ordinance makes it
                                                                 unlawful to build a concrete-crushing facility at a location that
                                                                 was specifically authorized under the Commission's orders by
[Holding:] The Supreme Court, Lehrmann, J., held that            virtue of the permit, we hold that the Ordinance is preempted.
ordinance was preempted by CEQ permit.                           Accordingly, we reverse the judgment of the court of appeals
                                                                 and render judgment for SCC.

Reversed.

                                                                           I. Factual and Procedural Background
Attorneys and Law Firms
                                                                 In October 2003, SCC applied to the Commission for an
*676 Benjamin Allen ‘Ben’ Geslison, Cristina Espinosa            air quality permit to move an already-permitted concrete-
Rodriguez, Rebecca Gilliam Hengstenberg, Stephen G.              crushing facility to a new location in Houston. While the
Tipps, Baker Botts LLP, Houston, TX, Derek Raymond               application was pending, the Presbyterian School Outdoor
McDonald, Evan Andrew Young, Whitney Louis Swift,                Education Center was built near the property SCC proposed
Baker Botts LLP, Austin, TX, for Southern Crushed                to use for its facility. In May 2007, after nearly four years
Concrete, LLC.                                                   of permit proceedings in which the City participated and
                                                                 opposed SCC's application, the City passed an ordinance
Angus Joseph Dodson, Aundrea Kristine Gulley, Kathy D.           requiring concrete-crushing facility operators to obtain a
Patrick, Gibbs & Bruns LLP, Houston, TX, Bertrand L.             municipal permit. HOUS., TEX., CODE OF ORDINANCES
Pourteau II, Judith Lee Ramsey, Sr. Assistant City Attorneys,    ch. 21, art. VI, div. 3, § 21–168.
City of Houston Legal Dept., David M. Feldman, Lynette
Fons, City of Houston Legal Department, Houston, TX, for         Under the Ordinance, new concrete-crushing operations must
City of Houston.                                                 meet certain location requirements, which are more restrictive
                                                                 than those imposed under the TCAA and the Commission


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)
56 Tex. Sup. Ct. J. 295

rules. Id. §§ 21–168, –170. Specifically, the Ordinance        TCAA or the Commission's rules or orders, we need only
prohibits concrete-crushing operations within 1,500 feet of    address that issue.
a school facility and other enumerated land uses, measured
from property line to property line, id. §§ 21–167 to –170,
while the TCAA and Commission rules prohibit the operation
                                                                             II. Preemption of Ordinances
of a concrete-crushing facility within 1,320 feet of any
                                                                             Enacted by Home–Rule Cities
school and other enumerated land uses, measured from the
nearest points of the buildings in question, TEX. HEALTH        [1] When both parties move for summary judgment and
& SAFETY CODE § 382.065(a); 30 TEX. ADMIN. CODE                the trial court grants one motion and denies the other, as
§ 116.112(b)(2).                                               here, we review both sides' summary judgment evidence and
                                                               render the judgment the trial court should have rendered.
Despite the Ordinance, the Commission granted SCC's            FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
requested air quality permit in August 2008, concluding        872 (Tex.2000). SCC argues that the Ordinance is preempted
that the concrete-crushing operations would not violate        by the TCAA because the Ordinance makes unlawful an act
the location requirements contained in the TCAA and            approved or authorized under the TCAA or the Commission's
Commission rules. SCC then applied to the City for a           rules or orders in violation of section 382.113(b) of the Health
municipal permit, which was denied because the concrete-       and Safety Code. We agree.
crushing operations would violate the Ordinance's location
restriction.                                                    [2] [3] The City of Houston is a home-rule city, deriving
                                                               its power from article XI, section 5 of the Texas Constitution.
SCC sued the City, seeking both a declaration that the         TEX. CONST. art. XI, § 5. Home-rule cities have the full
Ordinance is preempted and an injunction against its           power of self-government and look to the Legislature, not
enforcement. SCC contended that the Ordinance is preempted     for grants of power, but only for limitations on their powers.
under the Texas Constitution because it is impermissibly       Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d
inconsistent with the TCAA. See *678 TEX. CONST. art.          641, 643 (Tex.1975) (citing Forwood v. City of Taylor, 147
XI, § 5 (“[N]o ... ordinance ... shall contain any provision   Tex. 161, 214 S.W.2d 282 (1948)). “[I]f the Legislature
inconsistent with the Constitution of the State, or of the     decides to preempt a subject matter normally within a home-
general laws enacted by the Legislature of this State.”).      rule city's broad powers, it must do so with ‘unmistakable
SCC also argued that the Ordinance is preempted by the         clarity.’ ” In re Sanchez, 81 S.W.3d 794, 796 (Tex.2002)
TCAA, which provides that a city ordinance “may not make       (quoting Dallas Merchant's & Concessionaire's Ass'n v. City
unlawful a condition or act approved or authorized under       of Dallas, 852 S.W.2d 489, 491 (Tex.1993)).
[the TCAA] or the [C]ommission's rules or orders.” TEX.
HEALTH & SAFETY CODE § 382.113(b). SCC further
asserted that the Local Government Code's uniformity-of-
requirements provision bars enforcement of the Ordinance                  III. The Ordinance is Preempted by
because the Ordinance was adopted after SCC filed its                       the Plain Language of the TCAA
permit application with the Commission. See TEX. LOC.          The TCAA's policy and purpose is “to safeguard the
GOV'T CODE § 245.002. The parties filed cross-motions          state's air resources from pollution by controlling or abating
for summary judgment, and the trial court granted the City's   air pollution and emissions of air contaminants.” TEX.
motion, denied SCC's motion, and dismissed SCC's claims        HEALTH & SAFETY CODE § 382.002(a). Accordingly,
with prejudice.                                                any person who plans to construct a facility that may emit
                                                               air contaminants, such as a concrete-crushing facility, must
The court of appeals, with one justice dissenting, affirmed,   obtain a permit from the Commission. Id. § 382.0518; 30
holding that the Ordinance is neither preempted nor            TEX. ADMIN. CODE § 116.110. The TCAA lists general
unconstitutional and does not violate the uniformity-of-       considerations the Commission may take into account in
requirements provision. ––– S.W.3d ––––. SCC raises the        determining whether to grant a permit. TEX. HEALTH
same arguments in this Court as it did in the trial court.     & SAFETY CODE § 382.0518. In issuing a permit, the
Because the dispositive question is whether the Ordinance      Commission determines that the permit application satisfies
makes unlawful an act approved or authorized under the         the TCAA and applicable rules.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
Southern Crushed Concrete, LLC v. City of Houston, 398 S.W.3d 676 (2013)
56 Tex. Sup. Ct. J. 295

                                                                     authorization by a license, certificate, registration, or other
                                                                     form that is required by law or state agency rules to engage
 *679 [4] Section 382.113(b) states that a city ordinance
                                                                     in a particular business.” TEX. GOV'T CODE § 2005.001(1)
“may not make unlawful a condition or act approved or
                                                                     (emphasis added).
authorized under [the TCAA] or the [C]ommission's rules or
orders.” TEX. HEALTH & SAFETY CODE § 382.113(b).
                                                                     The City further contends that, even if the permit
The plain language of section 382.113(b) unmistakably
                                                                     represents the Commission's authorization or approval, such
forbids a city from nullifying an act that is authorized by either
                                                                     authorization or approval is only for the purpose of protecting
the TCAA or, as in this case, the Commission's rules or orders.
                                                                     air quality, not for general purposes. And, because the
Here, the Commission's authorization is evident from the face
                                                                     Ordinance purports to regulate land use, not air quality, the
of the permit:
                                                                     Ordinance does not actually abrogate the permit. But, the
                                                                     statute does not draw that distinction, nor should it if state
                                                                     regulation is to be effective. If the City's contention were true,
   A PORTABLE PERMIT IS HEREBY ISSUED TO                             a city could almost always circumvent section 382.113(b) and
                                                                     vitiate a Commission permit that it opposes by merely passing
             Southern Crushed Concrete, Inc.                         an ordinance that purports to regulate something other than
                                                                     air quality.

        AUTHORIZING THE CONSTRUCTION
             AND OPERATION OF
                                                                                             IV. Conclusion

                Concrete Crushing Facility                           We do not decide whether a city may more restrictively
                                                                     regulate an activity that the State also regulates, as that
                                                                     issue is not before us. But, the express language of section
        Regulated Entity Number: RN100904838
                                                                     382.112(b) compels us to give effect to the Legislature's clear
The City counters that the Ordinance does not make unlawful          intent that a city may not pass an ordinance that effectively
an act authorized by the Commission, arguing that the                moots a Commission decision. We hold that the Ordinance
permit merely removed one government-imposed barrier to              makes unlawful an “act approved or authorized under ...
operations but did not affirmatively authorize anything. We          the [C]ommission's ... orders” and is thus preempted by
disagree. As Justice Brown noted in his dissent in the court         the TCAA and unenforceable. TEX. HEALTH & SAFETY
of appeals, the City effectively argues that “the permit the         CODE § 382.113(b). We therefore reverse the judgment of
Commission issued to [SCC] ‘authorizing the construction             the court of appeals and render judgment for SCC.
and operation of’ a concrete-crushing facility is not actually
that.” ––– S.W.3d –––– (Brown, J., dissenting). The City's
                                                                     All Citations
argument is inconsistent not only with the permit language,
but also with Texas law, which defines permit to mean “an            398 S.W.3d 676, 56 Tex. Sup. Ct. J. 295

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)




                      584 S.W.2d 352                                                            I.
          Court of Civil Appeals of Texas, Austin.
                                                                  Hearing was held on September 29, 1976, in Rio Grande
           STARR COUNTY, Appellant,                               City and testimony was concluded on that same day. The
                     v.                                           record was held open twenty days for certain supplemental
   STARR INDUSTRIAL SERVICES, INC., Appellee.                     information which was supplied and the record was then
                                                                  closed.
              No. 12899.      |   June 20, 1979.
                                                                  On January 7, 1977, the Board considered the application
Applicant was denied his application for solid waste permit by    and the hearing examiner's report in connection with the
Water Quality Board. Intervenor county appealed judgment          application. On that same day the Board voted to deny the
of the 98th District Court, Travis County, Hume Cofer,            application and a written order was prepared in which the
J., setting aside and vacating Board's order and remanding        reasons for the denial of the permit were stated. The order was
cause to its successor, Texas Water Commission, for further       entered February 3, 1977.
proceedings. The Court of Civil Appeals, Phillips, C. J., held
that a significant part of Board's action was arbitrary and       The administrative record in this case is extensive and
capricious where applicant had complied with requirements         highly detailed. Appellee requested a permit to operate a
of Board's staff for permit and where Board based its decision,   commercial industrial solid waste management site to be
at least in part, on local opposition to application.             located approximately nine miles northwest of Rio Grande
                                                                  City in Starr County, Texas. The site was to consist of a
Judgment affirmed.                                                landfill type operation on an 81-acre tract leased by appellee
                                                                  wherein certain stabilized and neutralized industrial wastes
                                                                  would be buried in trenches and surrounded and covered
Attorneys and Law Firms
                                                                   *354 with clay-rich soil. The anticipated active life of the
*353 Robert Wilson, McGinnis, Lochridge & Kilgore,                site was three to four years, and the permit sought provided
Austin, for appellant.                                            for various safeguards and monitoring of the site, both during
                                                                  its active life and for a period of time after closure.
Edward C. Small, Dennis R. Reese, Small, Craig &
Werkenthin, Austin, for appellee.                                 The original application contained extensive and detailed
                                                                  information concerning the character of the wastes,
Opinion
                                                                  operations and closing of the facility. The details of many
PHILLIPS, Chief Justice.                                          aspects of the application were modified and supplemented
                                                                  by additional information and specifications subsequently
Appellee filed an application with the Texas Water Quality        submitted as a result of conferences with, and requests by, the
Board requesting approval for a Class I industrial solid waste    Board's staff.
permit for a landfill to be located in Starr County, Texas.
The Board 1 denied the application after a hearing. Appellee      The Board's technical staff, using the application and
appealed the denial of the order to the district court wherein    information supplied by appellee, along with its own
Starr County intervened.                                          information resources, drafted a proposed permit which it
                                                                  felt would include all of the provisions necessary for the
The trial court reviewed the order and rendered judgment          protection of ground and surface waters, public and private
setting aside and vacating the Board's order and remanding        property and the general health and public welfare. The
the cause to its successor, Texas Water Commission, for           provisions of the proposed permit were explained by the staff
further proceedings. Intervenor, Starr County, subsequently       and fully discussed at the public hearing which was held at
perfected its appeal from the judgment.                           Rio Grande City.


We affirm.                                                        The principal opposition to the permit came from the county
                                                                  judge of Starr County, the Rio Grande City Chamber of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)


Commerce, and from a state senator. The general tenor of the
objections was that the opponents were totally against any               2. The lease agreement for a term of only five years
Class I toxic waste dump in Starr County.                                   will not allow for adequate supervision, control or
                                                                            monitoring of the site after it is closed.
Consequently, in a letter from the Board's executive director,
                                                                         3. The operation of an industrial solid waste
Hugh Yantis, Jr., who was a member of the hearing
                                                                           management site in Starr County at the location
commission, it was stated: “It appears that the site and the
                                                                           proposed is inconsistent with the future land use
technical factors surrounding it are sustainable as permitting
                                                                           and development in the area.
an industrial solid waste disposal operation,” but concluded
that the application could be denied “on the basis of the                4. The adamant local opposition to the application for
express views of the people within the county.” At the hearing              a proposed industrial solid waste management site
of the Board on January 7, 1977, a Board member moved that                  evidences that the granting of a permit would be
the permit be denied for the reason that:                                   contrary to the welfare of the people in the area.

            “I likewise am reluctant to imply
            that we have veto power over the                                      CONCLUSIONS OF LAW
            local government and I must conclude,
                                                                    Based on all findings of fact, the following conclusions of
            all the arguments possibly to the
                                                                    law are made:
            contrary, that there is considerable
            local opposition on the part of the local                   *355 3. There has been full compliance with all
            governments, more than just one, and                         applicable provisions of Chapter 21 of the Texas
            I'm inclined to agree with Mr. Yantis.”                      Water Code and Section 4 of the Solid Waste
                                                                         Disposal Act and the accompanying Rules of Practice
The motion carried and the permit was denied.
                                                                         and Procedure of the Texas Water Quality Board
                                                                         concerning the application for a permit.“
A written order, denying the application, was entered on
                                                                  In its motion for rehearing, appellee offered to comply
February 3, 1977, and included the following pertinent
                                                                  with some of the new requirements, but the Board simply
findings and conclusions.
                                                                  overruled the motion.


                  “FINDINGS OF FACT
                                                                                                II.
  1. The construction and management of the industrial solid
                                                                  The Administrative Procedure and Texas Register Act (APA)
     waste disposal site as proposed is inadequate to prevent
                                                                  provides that the courts shall remand the case for further
     or minimize adverse public health and environmental
                                                                  proceedings “. . . if substantial rights of the appellant
     impact from accidents resulting from the transportation,
                                                                  have been prejudiced because the administrative findings,
     processing, and disposal of industrial solid waste, which
                                                                  inferences, conclusions, or decisions are:
     includes hazardous and toxic materials, because of the
     following:
                                                                  (1) in violation of constitutional or statutory provisions;
  (a) the proposed staffing pattern at the site would allow for
     extended periods of time during which no one would be
                                                                  (2) in excess of the statutory authority of the agency;
     at the site; and

                                                                  (3) made upon unlawful procedure;
  (b) the lack of resources or necessary equipment in Starr
     County to adequately handle the possibility of accidents
                                                                  (4) affected by other error of law;
     from fire, explosions, or traffic mishaps.

                                                                  (5) Not reasonably supported by substantial evidence in view
                                                                  of the reliable and probative evidence in the record as a whole;
                                                                  or



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Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)


                                                                   judgment for that of *356 the agency. Citizens to Preserve
(6) Arbitrary or capricious or characterized by abuse              Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28
of discretion or clearly unwarranted exercise of                   L.Ed.2d 136 (1971). There must appear a rational connection
discretion.“ (Emphasis added). Tex.Rev.Civ.Stat.Ann. art.          between the facts and the decision of the agency. Bowman
                                                                   Transportation, Inc. v. Arkansas-Best Freight System, Inc.,
6252-13a, s 19(e) (Supp.1978). 2
                                                                   419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 5
                                                                   B. Mezines, J. Stein and J. Gruff, Administrative Law s
 [1] In distinguishing between paragraphs five and six, the
                                                                   51.03, at 51-33 (1979). Stated differently, the reviewing
legislature has decided that arbitrary and capricious action
                                                                   court must remand “. . . if it concludes that the agency has
or abuse of discretion by an administrative board is of equal
                                                                   not actually taken a hard look at the salient problems and
proscription as that action “not reasonably supported by
                                                                   has not genuinely engaged in reasoned decision-making.”
substantial evidence.” In other words, subsection six sets out
                                                                   Texas Medical Association v. Mathews, 408 F.Supp. 303, 305
a basis for invalidation of an agency order in addition to and
                                                                   (W.D.Tex.1976). That court set aside an order because the
distinct from subsection five.
                                                                   agency had been subjected to pressure from congressional
                                                                   sources.
This conclusion is more difficult than would appear merely
from reading section 19(e). The well recognized explanation
                                                                   The major factor that runs throughout arbitrary-capricious
of the substantial evidence rule has blended the two concepts,
                                                                   review cases is that parties must be able to know what is
substantial evidence and arbitrary or capricious, into one
                                                                   expected of them in the administrative process. We believe
standard of review. The substantial evidence rule is generally
                                                                   this notice was lacking in the present case.
described as a limitation on the power of the courts to overturn
a decision by an administrative agency in that there must
                                                                    [5] As we stated above, the appellee worked quite closely
be a showing “. . . the administrative decision is illegal,
                                                                   with the Board's staff, and, apparently, had complied with all
arbitrary, or capricious; that is, that it is not reasonably
                                                                   of the staff's requirements for a permit when, to its surprise,
supported by substantial evidence.” Board of Firemen's Relief
                                                                   the Board denied the permit citing additional requirements
and Retirement Fund Trustees v. Marks, 150 Tex. 433, 242
                                                                   that had neither been expected by appellee nor proposed by
S.W.2d 181, 182-83 (1951). Accord, e. g., Gerst v. Cain,
                                                                   the Board's staff. In addition, the Board found: “The adamant
388 S.W.2d 168 (Tex.1965); Chemical Bank and Trust Co.
                                                                   local opposition to the application for a proposed industrial
v. Falkner, 369 S.W.2d 427 (Tex.1963); Industrial Accident
                                                                   solid waste management site evidences that the granting of a
Board v. O'Dowd, 157 Tex. 432, 303 S.W.2d 763 (1957).
                                                                   permit would be contrary to the welfare of the people in the
Stated in even stronger language, “. . . an arbitrary action
                                                                   area.” Nowhere in the Act is local opposition mentioned for
cannot stand and the test generally applied by the courts in
                                                                   consideration as a standard to govern the Board's decision and
determining the issue of arbitrariness is whether or not the
                                                                   such opposition, standing alone, should have no part in the
administrative order is reasonably supported by substantial
                                                                   Board's decision-making process. Yet obviously it did.
evidence.” Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).
                                                                    [6] Inasmuch as we find that a significant part of the Board's
 [2] The Texas Supreme Court has expressly qualified the
                                                                   action herein was arbitrary and capricious under Section 19(e)
language of Gerst v. Nixon, Supra, in Lewis v. Metropolitan
                                                                   (6) of the Administrative Procedure Act, we need not reach
Savings and Loan Association, 550 S.W.2d 11 (Tex.1977).
                                                                   the substantial evidence question raised by appellant. Because
There the Court made it clear that an order may be supported
                                                                   appellee's substantial rights were prejudiced by entry of the
by substantial evidence and yet be invalid for arbitrariness.
                                                                   agency order, the district court correctly set aside the order
“(A)rbitrary action of an administrative agency cannot stand.
                                                                   and remanded the cause to the agency for further proceedings.
There is arbitrariness where the treatment accorded parties in
the administrative process denies them due process of law.”
                                                                   The judgment is affirmed.
Id. at 16.

 [3]     [4] In determining whether an agency has acted All Citations
arbitrarily or capriciously the reviewing court must decide
whether the agency order was based on a consideration of all 584 S.W.2d 352
relevant factors. The reviewing court may not substitute its


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Starr County v. Starr Indus. Services, Inc., 584 S.W.2d 352 (1979)




Footnotes
1      Now consolidated into the Texas Department of Water Resources.
2      Section 19(e) (and its subsections) is applicable where the relevant statute “. . . authorizes review under the substantial
       evidence rule, or where the law does not define the scope of judicial review.” The Solid Waste Disposal Act is silent as
       to the scope of judicial review; therefore, section 19(e) applies to this case.


End of Document                                               © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             4
Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

                                                                     denying a permit to demolish three buildings owned by
                                                                     the College District. The trial court rendered judgment for
                        554 S.W.2d 924
                                                                     the College District, stating that in its judgment section
                    Supreme Court of Texas.
                                                                     6 of the Antiquities Code is both unconstitutional and
                    TEXAS ANTIQUITIES                                unconstitutionally applied. This court has jurisdiction by
                 COMMITTEE et al., Appellants,                       direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962);
                            v.                                       Tex.R.Civ.P. 499a.
                DALLAS COUNTY COMMUNITY                              Dallas County Community College District came into
                COLLEGE DISTRICT, Appellee.                          existence in 1965 as authorized by section 130.005 of the
                                                                     Texas Education Code. Its Board of Trustees “constitutes
                No. B-6107. | July 13, 1977.
                                                                     a body corporate” which may “acquire and hold real
            |    Rehearing Denied July 27, 1977.                     and personal property, sue and be sued,” and has “the
                                                                     exclusive power to manage” the College District's affairs.
County community college district filed suit for injunction
                                                                     Tex.Educ.Code Ann. s 23.26. Acting under its legislative
against Antiquities Committee and its members to set aside
                                                                     authorization, the College *926 District in 1966 purchased
order of Committee denying a permit to demolish three
                                                                     land in downtown Dallas on which there were four buildings;
buildings owned by college district. The 53rd District Court,
                                                                     the cost of the purchase was 2,150,000 dollars. The City of
Travis County, Jones, J., rendered judgment for college
                                                                     Dallas permitted temporary limited use of the three older
district, and Antiquities Committee appealed. The Supreme
                                                                     buildings upon assurance that they would be demolished
Court, Pope, J., held that: (1) section of antiquities code giving
                                                                     within three to five years. Plans for the demolition of the three
Antiquities Committee power to refuse to demolish building
                                                                     older buildings were announced to the public as early as 1969.
that was of historical interest was unconstitutionally vague,
(2) and evidence did not support Antiquities Committee's             The Board of Trustees of the College met in 1972 and voted
refusal to permit demolition of three buildings owned by             to restore the one building that was structurally sound and to
college district.                                                    demolish the three older buildings so the space could be used
                                                                     for new college facilities. The Board met on April 1, 1975,
Affirmed.                                                            to consider demolition bids, but a group of citizens requested
                                                                     a ten-day delay during which time the group hoped to find
Greenhill, C. J., concurred with opinion.                            funds for rebuilding the three buildings which were set for
                                                                     demolition. The group was unsuccessful in finding any funds,
Denton, J., dissented with opinion in which Daniel, Johnson          but it reported to the Board that on April 8 the buildings had
and Yarbrough, JJ., joined.                                          been placed on the National Register of Historical Buildings.
                                                                     No prior notification was given the College District that an
                                                                     expedited application was being made for inclusion of the
Attorneys and Law Firms
                                                                     buildings in the National Register.
*925 John Hill, Atty. Gen., Austen H. Furse, Asst. Atty.
                                                                     After the College District purchased the land and buildings
Gen., Austin, for appellant.
                                                                     in 1969 and made its plans for the College's efficient use
Strasburger, Price, Kelton, Martin & Unis, Patrick F.                of the land, the legislature enacted the Antiquities Code.
McGowan, H.P. Kucera, Dallas, Clark, Thomas, Winters &               Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969). The Antiquities
Shapiro, Barry K. Bishop and Mary Joe Carroll, Austin, for           Code provided for an Antiquities Committee consisting
appellee.                                                            of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, s
                                                                     3 (1969). Section 4 of the Code gives the Antiquities
Opinion                                                              Committee the authority “to determine the site of, and to
                                                                     designate, State Archeological Landmarks . . . .” Section
POPE, Justice.
                                                                     10 proscribes any construction on any State Archeological
Dallas County Community College District filed this suit             Landmark without first obtaining a permit from the
for injunction against the Texas Antiquities Committee               Antiquities Committee. 1 Section 10 is the only provision
and its members to set aside an order of the Committee               of the Code which in any way entitles the Committee to


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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

grant or deny a permit for the demolition of the buildings.
The Antiquities Committee has not designated any of the          We affirm the trial court judgment and will now examine each
three buildings at issue as State Archeological Landmarks,       of its separate adjudications.
but the Committee has denied the College District's request
to demolish the buildings based upon the buildings' expedited         UNCONSTITUTIONALLY VAGUE STATUTE
inclusion in the National Register of Historic Sites and
Buildings. The Antiquities Code does not give the Antiquities    The first basis of the trial court's judgment was that section 6
Committee authority over buildings in the National Register;     of the Antiquities Code, stated above, was unconstitutionally
instead, the Code only gives the Committee authority over        vague. There has been no contention that the three buildings
buildings which the Committee has designated as a State          in question possess archeological, scientific, or educational
Archeological Landmark. Since the Committee has not              interest. The Antiquities Committee only contends that the
designated the buildings as State Archeological Landmarks,       buildings are of “historical interest.” The sole basis for the
the College District does not need the Committee's permission    exercise of the Antiquities Committee's power over the three
before demolishing the buildings.                                buildings is found, if it can be found, in these words of the
                                                                 statute:
The trial court grounded its judgment upon two separately
                                                                           Sec. 6. All . . . buildings . . . and locations
stated and separately numbered adjudications:
                                                                           of historical . . . interest.
1. Section 6, Article 6145-9, V.T.C.S., reading as follows:

Sec. 6. All other sites, objects, buildings, artifacts,          The Antiquities Committee, although it has the power, by
implements, and locations of historical, archeological,          article 6145-9, section 11, has adopted no rules or standards
scientific, or educational interest, including but expressly     which state criteria for “buildings . . . and locations of
not limited to, those pertaining to prehistoric and historical   historical . . . interest.” The Antiquities Committee does
American Indian or aboriginal campsites, dwellings, and          not contend that section 6 gives any predictable standard or
habitation sites, *927 their artifacts and implements of         safeguard. Its position is that the law which strikes down
culture, as well as archeological sites of every character       statutes because they are vague, overbroad, and uncertain
that are located in, on or under the surface of any lands        should be overruled. It argues that the power of the legislature
belonging to the State of Texas or by any county, city or        to delegate its powers to state boards and commissions should
political subdivision of the state are hereby declared to be     be unlimited so long as there are experts who constitute the
State Archeological Landmarks and are the sole property of       membership of the Committee.
the State of Texas and all such sites or items located on
private lands within the State of Texas in areas that have       There has been called to our attention no case in Texas or
been designated as a “State Archeological Landmark” as           elsewhere in which the powers of a state board are more
hereinafter provided, may not be taken, altered, damaged,        vaguely expressed or less predictable than those permitted by
destroyed, salvaged, or excavated without a permit from, or      the phrase in question. The word “buildings” comprehends
in violation of the terms of such permit of, the Antiquities     all structures; “historical” includes all of the past; “interest”
Committee.                                                       ranges broadly from public to private concerns and embraces
                                                                 fads and ephemeral fascinations. All unrestorable structures
is unconstitutional and void, and the orders of the Defendants   ordinarily hold some nostalgic tug upon someone and may all
based thereon are unconstitutional and invalid.                  qualify as “buildings . . . of historical . . . interest.”
                                                                  [1] Upon the basis of the statute now before us, we are
2. Plaintiff need not obtain a permit from the Defendants        unconvinced that we should renounce the settled law of
before demolishing the three buildings in question situated      Texas that the legislature may not delegate its powers without
on Plaintiff's El Centro Campus in the City of Dallas,           providing some criteria or safeguards. Depending upon the
Dallas County, Texas, and bounded by Elm, Austin, Main           nature of the power, the agency, and the subject matter,
and Lamar Streets in said city; and the application of the       varying degrees of specific standards have been required
Texas Antiquities Act, Article 6145-9, to these buildings is     in testing the reasonable breadth of statutes. 1 Sutherland,
unconstitutional as applied.                                     Statutory Construction, s 4.05 (4th ed. 1975); Jordan v. State
                                                                 Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960).
                                                                 Sound reasons support the rule that some reasonable standard


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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

is essential to the constitutionality of statutory delegations of   Treatise, s 2.16 (1st ed. 1970). Instead, he would substitute
powers to state boards and commissions.                             administrative standards in the form of published rules and
          Vague laws offend several important                       regulations for statutory standards. See Trapp v. Shell Oil Co.,
          values. First, because we assume that                     145 Tex. 323, 198 S.W.2d 424 (1947). We have, in this case,
          man is free to steer between lawful                       no standard or criteria either by statute or rule which affords
          and unlawful conduct, we insist that                      safeguards for the affected parties.
          laws give *928 the person of ordinary
          intelligence a reasonable opportunity to                                  Unconstitutional Application
          know what is prohibited, so that he may
          act accordingly. Vague laws may trap the                   [2] [3] The second basis for the trial court's judgment is
          innocent by not providing fair warning.                   that “the application of the Texas Antiquities Act, Article
          (Footnote omitted.) Second, if arbitrary                  6145-9, to these buildings is unconstitutional as applied.” We
          or discriminatory enforcement is to be                    agree with this conclusion. Since the Antiquities Committee
          prevented, laws must provide explicit                     is a state agency, the Antiquities Committee's application
          standards to those who apply them.                        of section 6 of the Antiquities Code must be judged by the
          A vague law impermissibly delegates                       substantial evidence rule. Railroad Commission v. Shupee,
          basic policy matters to policemen,                        57 S.W.2d 295 (Tex.Civ.App.1933), aff'd, 123 Tex. 521, 73
          judges, and juries for resolution on                      S.W.2d 505 (1934). The substantial evidence rule demands
          ad hoc and subjective basis, with                         that we hold section 6 unconstitutional as applied if the
          the attended dangers of arbitrary and                     evidence is such that reasonable minds could not have reached
          discriminatory applications. Grayned v.                   the conclusion that the Antiquities Committee must have
          City of Rockford, 408 U.S. 104, 108-109,                  reached in order to justify its actions. Trapp v. Shell Oil Co.,
          92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d                      supra ; (Railroad Comm.) TremCarr v. Shell Oil Co., 139
          222 (1972).                                               Tex. 66, 161 S.W.2d 1022 (1942). We hold that there is no
                                                                    substantial evidence in support of the action of the Antiquities
                                                                    Committee.

We adhere to the settled principle that statutory delegations
of power may not be accomplished by language so broad and           There are two reasons for this conclusion. This first one is that
vague that persons “of common intelligence must necessarily         a program to restore the buildings would compel the misuse
guess at its meaning and differ as to its application.” Connally    of public funds that were obtained by approving a bond issue
v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126,            for educational purposes. The college delayed its contract for
70 L.Ed. 322 (1926). We are not persuaded that we should            demolition so that those seeking to save the buildings might
overrule or disapprove such cases as Key Western Life Ins.          come forward with funds necessary to do so. If those funds
Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d            had been available, the public school money would not have
839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165            been needed. No source of funds for salvage and restoration
S.W.2d 446 (1942); Housing Authority of City of Dallas              is suggested by any of the witnesses, other than the school
v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940);                funds. The school funds were already dedicated and allocated
Martinez v. Texas State Board of Medical Examiners, 476             to the College District's educational purposes. The testimony
S.W.2d 400 (Tex.Civ.App.1972, writ ref'd n.r.e.), appeal            shows that the large sums of money required to restore the
dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312;                 buildings would exhaust the College funds essential to its
Commissioners Court of Lubbock County v. Martin, 471                authorized educational purposes. Restoration of the buildings
S.W.2d 100, 105 (Tex.Civ.App.1971, writ ref'd n.r.e.); E.S.G.       would also require the reconstruction of five times more space
v. State, 447 S.W.2d 225 (Tex.Civ.App.1969, writ ref'd              than is needed for educational purposes. The Antiquities
n.r.e.).                                                            Committee recognized this fact. A witness *929 for the
                                                                    Committee stated that funds might be granted by the National
Professor Davis concludes that the non-delegation doctrine          Park Service provided the buildings are usable, but not if
in federal courts has been less than successful, but he             they are simply restored to be exhibited as old buildings. An
would not abolish all standards. Davis, Administrative Law          architect testifying for the Committee expressed the opinion



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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

that “the only source I know of for the money would be . . . the   occupants, books, and furniture would impose weight loads
Community College . . . .” The President of the College said       that the buildings could not bear even if restored. If usable
that the public would be considerably upset if it thought there    as commercial rented space, there would be a continuing
was a possibility of diverting school funds to the restoration     financial burden to the College District. For example, one
for non-educational purposes. Upon the basis of this kind          building could be restored at a cost of 6,000,000 dollars
of evidence from both those who favored and opposed the            and then rented for commercial purposes with a maximum
restoration of the buildings, the trial court quite properly       return of no more than 2.98 percent. But leasing for
concluded that the Act was unconstitutionally applied to a         business purposes would be difficult because the commercial
situation in which property and funds committed to a public        offices would be in the midst of an inappropriate academic
trust for the benefit of the people in the school district would   community. That part of downtown Dallas already has an
be arbitrarily diverted to a wholly different purpose.             eighteen to twenty percent vacancy rate for its buildings.
                                                                   From this record, there is no substantial evidence that the
The second reason for our decision is that the buildings           buildings, even after reconstruction and renovation could be
are incapable of restoration except upon an unreasonable           usable for educational purposes.
expenditure of money. The inferior materials used in the
original construction of the buildings requires complete           The Antiquities Committee confronts the trial court's
reconstruction from the foundation up and at a cost                judgment with the contention that the College District, as a
greater than original new construction. The engineering and        political subdivision of the state is subordinate to the powers
architectural evidence is that the only way to bring the           of the Antiquities Committee; has no contract or property
buildings up to code standards or to save them is to rebuild       rights which are protectable against the Committee's superior
them. Even the foundations would have to be rebuilt. The           powers. We need not in this case, decide which of two state
cost of rebuilding all three buildings would be in excess of       agencies is charged with *930 the “higher” trust. In this
10,500,000 dollars. There is danger of collapse of the outside     case that question would cast the educational needs of the
walls if reconstruction is undertaken. Estimates for the cost      state's citizens against the preservation of the 1910 buildings
of reconstruction range from thirty-five dollars to eighty-        described above. The Committee, relying upon the language
one dollars per square foot. One witness for the Antiquities       of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52
Committee said that anything can be built if you construct         L.Ed. 151 (1907), argues that “the State is supreme, and
a building out of money, but the reconstruction would cost         its legislative body . . . may do as it will, unrestrained by
more than new construction. He stated that the diversion of        any provision of the Constitution of the United States.” That
the College District's funds from education to the preservation    expression of statism satisfies neither the protections of the
of the three buildings presented an unsolvable conflict.           United States Constitution or the Texas Constitution.
Another witness for the Antiquities Committee suggested
that the solution to the construction problem was to gut the       The United States Supreme Court has closely restricted
buildings, use the facades as curtain walls, and put a new         Hunter's broad and loose language in Gomillion v. Lightfoot,
structural frame inside. Sandstone and brick have been falling     364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Justice
from the buildings since 1967. Both the sandstone and the          Frankfurter, writing for the court in Gomillion, circumscribed
windowsills have now been purposely chiseled away from the         its dicta by an analysis of the matters before the court in
outside of the buildings to avoid their falling on people in       Hunter and wrote:
the streets below. Of three hundred core samples taken from                  In short, the cases that have come
the building, all came out as dust, chips, or loose bricks. The              before this Court regarding legislation
buildings have already outlasted by more than forty years the                by States dealing with their political
time for which they were designed. The exterior walls support                subdivisions fall into two classes: (1)
the floor load. One building, eight stories high, uses wood                  those in which it is claimed that the
columns. All three buildings are at least nine times below the               State, by virtue of the prohibition against
code requirements.                                                           impairment of the obligation of contract
                                                                             (Art. I, s 10) and of the Due Process
The only use for the buildings suggested by the Antiquities                  Clause of the Fourteenth Amendment, is
Committee, even after the costly rebuilding would be as                      without power to extinguish, or alter the
commercial office space. The buildings cannot be made                        boundaries of, an existing municipality;
usable for educational purposes. Classrooms with many                        and (2) in which it is claimed that


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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

          the State has no power to change                         property as trustee for the public. This court held, instead, that
          the identity of a municipality whereby                   the school district's property must be used for the purposes
          citizens of a pre-existing municipality                  for which it was acquired. This court stated that the school
          suffer serious economic disadvantage.                    district:
          364 U.S. 342-343, 81 S.Ct. 128.                                    has no contract right to exist as a
                                                                             corporation, but the public that it
                                                                             represents has a vested right in the
In a society when so many rights are subject to the regulation               municipal property acquired for its
of administrative agencies, Gomillion brought the “plenary                   benefit, and is entitled to demand that
power” doctrine of Hunter under appropriate limitations,                     such property be applied to its uses. 40
stating:                                                                     S.W.2d at 27.
          a correct reading of the seemingly
          unconfined dicta of Hunter and
          kindred cases is not that the State                       *931 Love cited with approval the principle enunciated in
          has plenary power to manipulate in                       24 Ruling Case Law, Schools ss 45-47 (1919), that school
          every conceivable way, for every                         funds and property are trust funds for educational purposes;
          conceivable purpose, the affairs of its                  consequently, they should not:
          municipal corporations, but rather that                            be diverted to other even though closely
          the State's authority is unrestrained                              kindred uses, no matter how meritorious
          by the particular prohibitions of the                              the project may appear to be either in
          Constitution considered in those cases.                            its practical or ethical or sentimental
                                                                             aspects. Even the legislature, itself, the
 [4] The Texas law has developed in a similar fashion.                       fountain head of matters educational,
One agency of the state does not possess powers to                           cannot divert school funds to other uses.
divest vested property and contract rights of another state                  40 S.W.2d at 27.
agency “unrestrained by the particular prohibitions of the
Constitution.” In Milam County v. Bateman, 54 Tex. 163
(1880), the legislature granted land to the county for public      Since the Antiquities Committee's application of section 6
school purposes. Subsequently, the legislature took this land      diverts the buildings to uses other than educational purposes,
from the county and transferred it to private individuals.         Love demands that we hold section 6 unconstitutional as
This court held that the legislature could not do this. The        applied.
legislature's extensive control over its subdivisions' political
rights was recognized, but it was held that a subdivision's         [6] On the basis of the trial court's findings that section
property rights, “are protected by the same constitutional         6 of the Antiquities Code is both unconstitutional and
guarantees which shield the property of individuals.” 54 Tex.      unconstitutionally applied, we affirm the trial court judgment.
at 166. Milam County went on to state that, “the purpose for
which the property was originally acquired shall, as far as
circumstances will admit, be kept in view; and that it shall       GREENHILL, C. J., concurs with an opinion.
not arbitrarily be diverted as in the case before us, to private
parties and to a wholly different purpose.” 54 Tex. at 166.        DENTON, J., dissents in an opinion in which DANIEL,
                                                                   JOHNSON and YARBROUGH, JJ., join.
 [5] Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20
(1931) faced the issue whether the legislature had plenary
                                                                   GREENHILL, Chief Justice, concurring.
power over a school district's property and functions. The
question in Love was whether a school district must, as the        I agree that the judgment of the trial court should be affirmed;
legislature had enacted, use its funds to educate non-residents    and, therefore, I concur in the judgment of the Court.
of the local district. Writing for the court, Chief Justice
Cureton rejected the idea that the legislature has plenary         It clearly appears to me that this particular determination of
powers over its creature when the school district holds its        the Antiquities Committee is not supported by substantial



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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

evidence. Stated differently, for the reasons set out in the       administer such property for educational purposes. It is not
Court's opinion, the action of the Board is arbitrary and          given the right to vote, the freedoms of speech, press, and
without a sound basis.                                             religion, the right to counsel, or any other right enjoyed by
                                                                   people under the Constitution. This is because a political
My conclusion is based on the application of the substantial       subdivision is not now and never has been a “person” in any
evidence rule and not upon constitutional grounds. When a          sense of the term. It was early established by this Court that a
controversy may be resolved on a non-constitutional ground,        public political subdivision is merely an agent of the State in
then the court should rest its decision on that ground, and        the *932 administration of its power. In Bass v. Fontelroy,
should not decide the constitutional questions presented.          11 Tex. 698 (1854) the Legislature had repealed the charter
Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131,          of the City of Brownsville; the repeal was challenged as
100 L.Ed. 60 (1955); Peters v. Hobby, 349 U.S. 331, 75 S.Ct.       an unlawful taking of vested property rights without just
790, 99 L.Ed. 1129 (1955). I therefore, do not reach any           compensation. Justice Lipscomb, denying the City's claim,
constitutional question.                                           stated that:
                                                                             The establishment of counties, their
DENTON, Justice, dissenting.                                                 boundaries, courthouses, jails, bridges,
                                                                             ferries, are all matters of public policy,
I respectfully dissent. Four of my brothers hold that section                dependent on the legislative will for
six of the Antiquities Code is too vague, so it violates the Due             their creation; and . . . are equally
Process Clause of both the State and Federal Constitutions. I                dependent upon the same for their
disagree; the College District does not have standing to assert              continued existence.
deprivation of property without due process, and under what I
perceive as the proper scope of review in this case there exists
no justiciable controversy.                                        11 Tex. at 705. And in Guadalupe County v. Wilson County,
                                                                   58 Tex. 228 (1882), the Legislature in creating Guadalupe
My first disagreement with the plurality is in the application
                                                                   County had taken portions of Wilson County without
of the Fourteenth Amendment and Art. I, s 19 of the Texas
                                                                   compensation. The ensuing boundary dispute was held
Constitution:
                                                                   a political question, resolved beyond judicial interference
          nor shall any State deprive any person                   by the Act creating Guadalupe County and defining its
          of life, liberty, or property, without due               boundaries to the exclusion of Wilson County. The agency
          process of law . . . .                                   concept of municipal corporation law was specifically relied
                                                                   upon in City of Victoria v. Victoria County, 100 Tex. 438, 101
                                                                   S.W. 190 (1907), where this Court, in upholding a legislative
U.S.Const. Amend. XIV, s 1.                                        transfer of title from the county to the city stated:
          No citizen of this State shall be deprived
                                                                             The principle is that insofar as a
          of . . . property . . . except by due course
                                                                             corporation strictly municipal or quasi-
          of law . . . .
                                                                             municipal holds property for the
                                                                             purposes of government, it holds merely
                                                                             as a governmental agency, and it is within
Tex.Const. Art. I, s 19. Essential to a holding that the College
                                                                             the power of the Legislature of the State
District has not been afforded due process is a holding that the
                                                                             to confer that agency upon some other
District is a person, or a citizen. There exists no authority to
                                                                             proper governmental instrumentality.
support the holding, implicit in the plurality opinion, that the
College District is a “person,” and I can think of no rationale
for such a holding.
                                                                   100 Tex. at 451, 101 S.W. at 196. See also, Herget, The
The College District is a body politic, or political subdivision   Missing Power of Local Government, 62 Va.L.Rev. 999
of the State of Texas, created pursuant to the legislative         (1976).
authority of article 2815h of the civil statutes. The College
                                                                   Decisions of the United States Supreme Court establish
District is authorized to levy taxes, acquire title in its
                                                                   that political subdivisions, as agencies of the State in the
own name to real and personal property, and generally to


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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

exercise of governmental powers, have no rights assertible         to in Gomillion, involved claims under the Fourteenth
under the Federal Constitution against the State. The famous       Amendment. To reiterate, Gomillion involved the rights of
case of Trustees of Dartmouth College v. Woodward, 17              private persons ; it has no application to the controversy
U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), established               at hand. The plurality cite no case in which a political
that public corporations, as distinguished from private            subdivision has been held entitled to due process and there is
business corporations, enjoy no protection assertible under        none.
the contract clause of the Federal Constitution against
legislative alteration of organic charters. See Campbell, John     This Court has, on two occasions, enunciated the proper
Marshall, The Virginia Political Economy, and the Dartmouth        scope of judicial review over legislative control of political
College Decision, 19 Am.J.Legal Hist. 40 (1975). Cases             subdivisions. Far from holding that political subdivisions are
following Dartmouth College have reiterated that the charter       entitled to due process of law, this Court has stated that the
of a political subdivision, being a mere delegation of State       only protection is against arbitrary diversion of property held
authority, is subject to alteration or revocation at the will of   by political subdivisions in such a fashion that the public
the Legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 28    would be deprived of the use of such property. The only
S.Ct. 40, 52 L.Ed. 151 (1907); Covington v. Kentucky, 173          judicial question is arbitrariness vel non of the legislative
U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679 (1899); Meriwether v.         action.
Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880); East Hartford v.
                                                                   In Milam County v. Bateman, 54 Tex. 163 (1880), the Court
Hartford Bridge Co., 51 U.S. (10 How.) 511, 13 L.Ed. 518
                                                                   commented:
(1850). A municipality thus was denied the power to assert
                                                                              Counties in their relation toward the state
denial of due process of law in City of Trenton v. New Jersey,
                                                                              may be viewed in a two-fold aspect: one,
262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). And Mr.
                                                                              which pertains to their political rights and
Justice Cardozo in Williams v. Mayor of Baltimore, 289 U.S.
                                                                              privileges; the other, to their rights of
36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) made it clear that no
                                                                              property.
protection is offered a political subdivision by the Fourteenth
Amendment. To the Supreme Court, a political subdivision
simply is not a person; and is not, therefore, entitled to due
                                                                   54 Tex. at 165. Concerning “political rights and privileges,”
process. See Schulz, The Effect of the Contract Clause and
                                                                   including the right of organic existence, the Court noted that
the Fourteenth Amendment upon the Power of the States to
                                                                   a county has no assertible rights against the State; the latter
Control Municipal Corporations, 36 Mich.L.Rev. 385 (1938).
                                                                   was said to be in complete control. Different considerations
The plurality cites Gomillion v. Lightfoot, 364 U.S. 339, 81       were deemed applicable as to “rights of property.”
S.Ct. 125, 5 L.Ed.2d 110 (1960) as providing the necessary         A different principle, however, obtains as regards the rights
exception to the rule. In that case voters, that is People of      of counties to property which they may acquire.
Tuskeegee, Alabama argued that a legislative redistricting
of the city deprived them of the voting rights under the           If given for a specific object, the state may very properly, as in
Fifteenth Amendment. There were no “rights” of the city, a         the instance under consideration of our school lands granted
political subdivision, before the Court. The plurality quote the   to counties, exercise such supervision and control over the
following from the Gomillion opinion:                              actions of the counties as to compel the proper execution of
                                                                   the trust, or prevent its being defeated; but it is believed that
          (A) correct reading of the seemingly
                                                                   this control, unless by consent of the county, should be subject
          unconfined dicta of Hunter and
                                                                   to the restriction, that the purpose for which the property was
          kindred cases is . . . that the
                                                                   originally acquired shall, as far as circumstances will admit,
          State's authority is unrestrained by
                                                                   be kept in view ; and that it shall not arbitrarily be diverted . . .
          the particular prohibitions of the
                                                                   to private parties and to a wholly different purpose.
          Constitution considered in those cases.


                                                                   54 Tex. at 165-66 (emphasis mine).
 *933 364 U.S. at 344, 81 S.Ct. at 128 (emphasis mine). As
stated above, City of Trenton v. New Jersey and Williams           The quoted portions of the Milam County opinion were
v. Mayor of Baltimore, supra, two of “those cases” referred        genesis to this Court's consideration of legislative power



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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

in Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20              government entity in which title was theretofore reposed. The
(1931). In Love the Court was concerned with whether the           interest protected by Milam County and Love is the public's
Legislature could impose upon the City the obligation to           interest in use of the property, not the local entity's interest in
employ City funds for the education of nonresident children.       nominative title. Change in nominative title effects no change
It was determined that such an imposition would violate            in use. The nominative title to public property is a patently
Tex.Const. Art. VII, s 3, in that it would divert special school   political matter to which the words of Justice Bonner in
funds. * In spite of such holding the Court went on to discuss     Milam County are peculiarly applicable: “If (the State) could
the legislative power over its subdivisions in general:            not exercise such power over the delegated political rights and
The rule is that the ownership of (local government) property      privileges of . . . subdivisions of state governmental authority,
is in the local district or municipality for the benefit of the    we might have a system of petty discordant governments
public, within the boundaries of the district or municipality.     within a government, without unity of design or action.”
The Legislature may control or dispose of the property             54 Tex. at 165. See also Chester County Institution District
without the consent of the local bodies, so long as it does not    v. Commonwealth, 341 Pa. 49, 17 A.2d 212 (1941). And
apply it in contravention of the trust.                            although the grant of power to the Antiquities Committee to
120 Tex. at 367, 40 S.W.2d at 27 (emphasis mine).                  prohibit or regulate alteration, damage or destruction of an
                                                                   “archeological landmark” indirectly might effectuate some
                                                                   change in a use, the legislative decision to vest power to
The limitations upon legislative power in Milam County and         make that change in a committee of seven experts cannot
Love are founded upon sound reason. Local government               be considered arbitrary. It is as I have said, only arbitrary
property is, in principle and in fact, trust res conveniently      regulation of local government property which gives rise to a
held and managed by local officials for the benefit of             justiciable interest on the part of local government officials.
the local public. Where, *934 as here, such property has           In the instant case, the College District claims that the
been acquired with governmental funds pursuant to specific         buildings cannot compatibly be used for both educational and
approval of the local voting public, there arises special reason   cultural (historical preservation) purposes. It might indeed
for enforcing the trust; justifiably, the public has a reliance    be a justifiable implication from the Antiquities Committee's
interest in the disposition of property acquired for and devoted   action that the educational function of the College District
to a designated use. Milam County instructs the Legislature        would be promoted rather than impaired by the requirement
in its supervision of local government property to keep in         that the cultural integrity of school buildings be maintained.
view “the purpose for which the property was originally            But making such an implication is not a judicial function.
acquired,” and prohibits arbitrary diversion to a “wholly          It is not the duty of the courts in a case of this nature to
different purpose.” Love goes further to say that Legislative      view structures, deemed by one State agency as culturally
power over local government property is regulatory only;           insignificant and by another as worthy of preservation,
while the entity is subject to legislative destruction, the        and decide which is in the right. This is especially true
property held by that entity remains in the public trust. On the   where the Legislature has granted the other the power to
other hand, neither Milam County nor Love can be considered        preserve without granting the one the right to question.
authority for the proposition that local government entities       Firemen's & Policemen's Civil Service Comm'n v. Kennedy,
have judicial standing to challenge legislative regulation         514 S.W.2d 237 (Tex.1974). The Legislature, in section
of property in the same manner or to the same degree               six of the Antiquities Code, has delegated authority to the
as owners of private property. The judicial touchstone is          Antiquities Committee to protect that which it deems worthy
arbitrariness. Management of property held in the public           of protection. The Antiquities Committee is made a final
trust is a matter of legislative concern. Cf., Note, Proprietary   checkpoint prior to possible effacement of property deemed
Duties of the Federal Government Under the Public Land             by the Legislature to be of intangible value. The legislative
Trust, 75 Mich.L.Rev. 586, 592-94 (1977).                          decision that property held by its political subdivisions
                                                                   may not be altered when such alteration would efface the
Turning now specifically to section six of the Antiquities         property's historical integrity is not a decision with which
Code, it becomes apparent to me that it effects no diversion       the courts should interfere. If *935 the plurality intends to
of College District property in a manner prohibited by Milam       hold, under Love v. City of Dallas that historical preservation
County and Love. The mere fact that “State archeological           is such a wholly incompatible use of property acquired for
landmarks” are declared to be the “sole property of the State”     educational purposes so as to constitute an unlawful diversion
gives rise to no justiciable complaint on the part of the local


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Texas Antiquities Committee v. Dallas County Community..., 554 S.W.2d 924 (1977)
18 A.L.R.4th 973

                                                                         and absent arbitrary legislative action, the courts cannot and
of a public trust, it would be difficult to discern any situation
                                                                         should not interfere with the manner in which the Legislature
in which historical preservation would not be antipathetic
                                                                         conducts its affairs.
to the public trust. I can see no operative distinction
between property acquired for educational purposes and                   I would not in this case reach the questions of vagueness
property acquired for, say, a City Hall, a courthouse or a               discussed by four members of the Court. Such questions
park. Indeed, such a holding is tantamount to a judicial                 should, and will be raised at such time as this Court is faced
declaration that no property held by a political subdivision             with governmental interference with private property under
can be protected under the legislative banner of historical              the banner of historical preservation. But in reply I do point
preservation unless the property originally was acquired for             out that this Court very recently stated that the protection of
its aesthetic characteristics, or unless the Legislature takes the       cultural property may indeed be a duty of the Legislature. San
property by exercise of eminent domain. I would hold that                Antonio Conservation Soc'y, Inc. v. City of San Antonio, 455
restriction of the use of College District property in order             S.W.2d 743, 748 (1970). Not every historical structure worthy
to protect that property's aesthetic integrity does not deprive          of protection can be an Alamo; vagueness in describing
the local public of the benefit of the property to the degree            cultural property may to a degree be an inherent difficulty.
prohibited by Love and Milam County. In imposing a higher,
general trust upon property held by political subdivisions in            I would reverse the district court's judgment and dissolve the
the public trust, the Legislature acted within its authority.            injunction.
When such is the case, the remedy lies in the legislative
process, not in the courts. See Henkin, Is There a “Political
                                                                         DANIEL, JOHNSON and YARBROUGH, JJ., join in this
Question” Doctrine ? 85 Yale L.J. 597 (1976). This is a
                                                                         dissent.
dispute between different departments of the same branch
of government. The “boss” of that branch, the Legislature,               All Citations
has decided that one department's power exceeds the other's.
As long as no specific constitutional provision is violated,             554 S.W.2d 924, 18 A.L.R.4th 973


Footnotes
1       Sec. 10. The Antiquities Committee shall be authorized to issue permits to other state agencies or institutions and to
        qualified private institutions, companies, or individuals for the taking, salvaging, excavating, restoring, or the conducting of
        scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee
        would be in the best interest of the State of Texas. Such permits may provide for the retaining by the permittee of a portion
        of any recovery as set out for contracting parties under Section 9 hereof. Such permit shall provide for the termination
        of any rights in the permittee thereunder upon the violation of any of the terms thereof and to be drafted in compliance
        with forms approved by the Attorney General. All such permits shall specifically provide for the location, nature of the
        activity, and time period covered thereby. No person, firm, or corporation shall conduct any such operations on any State
        Archeological Landmark herein described without first obtaining and having in his or its possession such permit at the
        site of such operation, or conduct such operations in violation of the provisions of such permit.
*       The Court stated:
        Since the Constitution, art. 7, sec. 3, contemplates that districts shall be organized and taxes levied for the education
        of scholastics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary
        functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such
        an obligation on them, without just compensation.
        120 Tex. at 367, 40 S.W.2d at 27.


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                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   9
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


                                                                 of the court of appeals and affirm the judgment of the trial
                                                                 court.
                     665 S.W.2d 446
                 Supreme Court of Texas.
                                                                 The Texas Health Facilities Commission is the Texas
        TEXAS HEALTH FACILITIES                                  administrative agency charged with governing the availability
       COMMISSION et al., Petitioner,                            of health care facilities in this state. See Health Planning
                  v.                                             and Development Act, Tex.Rev.Civ.Stat.Ann. art. 4418h, §§
                                                                 1.01–6.04 (HPDA). The Commission's primary function is
 CHARTER MEDICAL–DALLAS, INC., Respondent.
                                                                 to prevent the development of new health care facilities
             No. C–2478.       |   Feb. 15, 1984.                with services that are not needed or that cannot feasibly be
                                                                 developed, staffed, or operated. This function is performed
Appeal was taken from orders of the Health Facilities            primarily by the Commission's administration of a state
Commission granting certificates of need to two hospitals and    certificate of need program. Id., § 2.06. Under this program, a
denying certificate of need for another hospital. The 250th      person proposing to establish or modify a health care facility
Judicial District Court, Travis County, Charles D. Mathews,      must obtain a certificate of need from the Commission. Id.,
J., sustained the Commission's order. On appeal, the Austin      § 3.01.
Court of Appeals, Third Supreme Judicial District, Powers,
J., 656 S.W.2d 928, reversed and remanded with instructions,      *449 In December of 1979 and January of 1980, the
and appeal was taken. The Supreme Court, Barrow, J., held        parties to this appeal filed applications seeking certificates
that Commission's decision was supported by substantial          of need for proposed projects. Memorial sought permission
evidence and was not arbitrary or capricious.                    to convert a portion of its general hospital into psychiatric
                                                                 use; Healthcare proposed to construct a new facility, “Green
Court of Appeals reversed and trial court affirmed.              Oaks;” and Charter Medical applied for permission to
                                                                 construct “Dallas Psychiatric Hospital.” All three projects
                                                                 were planned for the area encompassing north Dallas
Attorneys and Law Firms                                          County and Collin County. These three applications were
                                                                 consolidated by the Commission, and a hearing was held to
 *448 Jim Mattox, Atty. Gen., Steven L. Martin, Asst. Atty.
                                                                 determine whether one or more of the applications should be
Gen., Austin, Law Offices of Earl Luna, Mary Mildord,
                                                                 granted. The Commission rendered its orders in October of
Dallas, Heath, Davis & McCalla, Dudley D. McCalla, Austin,
                                                                 1980 granting certificates of need to Healthcare and Memorial
for petitioner.
                                                                 and denying the application of Charter Medical.
Wood, Lucksinger & Epstein, Bruce Bigelow, Austin,
Trotter, Bondurant, Miller and Hishon, Glen A. Reed,             The trial court rendered judgment sustaining the orders of
Atlanta, Ga., for respondent.                                    the Commission as to all three applications. This judgment
                                                                 was reversed by the court of appeals and the cause remanded
Opinion                                                          to the Commission. The stated reason for the court of
                                                                 appeals' decision is that the Commission's orders contain
BARROW, Justice.
                                                                 insufficient underlying (basic) facts to support the ultimate
This is an appeal from three consolidated orders of petitioner   findings or conclusions of the Commission on the three
Texas Health Facilities Commission. The orders of the            applications. The court of appeals held that the absence of
Commission granted certificates of need to petitioners           underlying facts rendered the Commission's ultimate findings
Healthcare International and Memorial Hospital of Garland        arbitrary and capricious. The court of appeals remanded all
and denied a similar request made by respondent Charter          three applications to the Commission since the Commission's
Medical-Dallas, Inc. The action of the Commission was            denial of Charter Medical's request may have been based upon
upheld by the trial court. The court of appeals, with one        the granting of the other two applications.
justice dissenting, reversed the judgment of the trial court
and remanded the cause to the Commission for further             In reaching its decision, the court of appeals set forth a lengthy
proceedings. Charter Medical-Dallas, Ins. v. Texas Health        recitation of the facts and Commission rules applicable to this
Facilities Com'n, 656 S.W.2d 928. We reverse the judgment        appeal; we refer the reader to that opinion for a more complete



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


statement on these matters. We limit our discussion to the         The Commission has promulgated “General Criteria for Use
specific points properly before this Court and upon which we       in Certificate of NeedReviews” *450 that incorporate both
base our decision.                                                 the factors required by subsection 3.10(b) and the factors that
                                                                   the legislature has directed the Commission to “consider.” 1
This administrative appeal arises under the authority of           These criteria include thirteen broad categories addressing
the HPDA in conjunction with the Texas Administrative              such matters as “Community Health Care Requirements,”
Procedure and Texas Register Act. Tex.Rev.Civ.Stat.Ann.            “Service Area Population,” and “Relationship to Existing
art. 6252–13a (APTRA). Under the legislative scheme of the         Services and Existing Facilities.”
APTRA, the manner of review of agency actions is governed
by the enabling statute in the area under adjudication.            Under these broad, general categories are approximately
APTRA, § 19(e); Southwestern Bell Telephone Co. v.                 fifty-four subcategories or factors that the Commission
Public Utility Commission, 571 S.W.2d 503, 508 (Tex.1978).         considers relevant to its decision on the ultimate factors.
Section 1.04 of the HPDA incorporates the APTRA “except            These subcategories are referred to by the court of appeals as
to the extent inconsistent with” the HPDA. Therefore, the          “intermediate facts.” The findings of the Commission on the
scope of judicial review in this case must be discerned from       totality of these criteria form the basis of the Commission's
both the HPDA and the APTRA.                                       decision to grant or deny a certificate of need. “An applicant
                                                                   or party who is aggrieved by an order of the commission ...
In determining the role of the reviewing court, we must first      is entitled to judicial review under the substantial evidence
ascertain the legislative standards to which the Commission        rule.” HPDA, § 3.15.
must adhere in making its decisions, i.e., what findings and
conclusions the Commission must make before it properly            Having determined the prerequisites to agency action under
may grant a certificate of need. Subsection 3.10(a) of             the HPDA, we look to the APTRA to determine its guidelines
the HPDA requires the Commission to promulgate rules               for judicial review. Section 16(b) of the APTRA states: “A
establishing criteria to determine whether an applicant is to be   final decision must include findings of fact and conclusions of
issued a certificate of need for a proposed project. Subsection    law, separately stated. Findings of fact, if set forth in statutory
3.10(b) sets forth five specific factors that must be included     language, must be accompanied by a concise and explicit
among the Commission's criteria:                                   statement of the underlying facts supporting the findings.”
                                                                   The exact manner of judicial review is stated in section 19(e):
  Criteria established by the commission must include at
  least the following:                                               The scope of judicial review of agency decisions is as
                                                                     provided by the law under which review is sought.... Where
  (1) whether a proposed project is necessary to meet the
                                                                     the law authorizes review under the substantial evidence
  healthcare needs of the community or population to be
                                                                     rule, ... the court may not substitute its judgment for that
  served;
                                                                     of the agency as to the weight of the evidence on questions
  (2) whether a proposed project can be adequately staffed           committed to agency discretion but may affirm the decision
  and operated when completed;                                       of the agency in whole or in part and shall reverse or
                                                                     remand the case for further proceedings if substantial
  (3) whether the cost of a proposed project is economically         rights of the appellant have been prejudiced because
  feasible;                                                          the administrative findings, inferences, conclusions, or
                                                                     decisions are:
  (4) if applicable, whether a proposed project meets the
  special needs and circumstances for rural or sparsely              (1) in violation of constitutional or statutory provisions;
  populated areas; and
                                                                     (2) in excess of the statutory authority of the agency;
  (5) if applicable, whether the proposed project meets
  special needs for special services or special facilities.          (3) made upon unlawful procedure;

Thereafter, subsection 3.10(c) contains six factors that the         (4) affected by other error of law;
Commission “shall consider” in developing its criteria.




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Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


                                                                               accompanied by a concise and explicit
  (5) not reasonably supported by substantial evidence in                      statement of the underlying facts.
  view of the reliable and probative evidence in the record
  as a whole; or                                                  Gonzales County, 474 S.W.2d at 457. We went on to explain
                                                                  that, generally, statutory findings are broadly stated and
  (6) arbitrary or capricious or characterized by abuse of        require discretion or judgment on the part of the agency
  discretion or clearly unwarranted exercise of discretion.       based on a multitude of factors. Conversely, non-statutory
                                                                  findings usually are more factual in nature and carry with
The above-quoted portions of the APTRA are the primary
                                                                  them the supporting underlying facts. Thus, the latter need no
guidelines to be used by a court in reviewing the actions of
                                                                  accompanying facts to support them.
administrative agencies.

                                                                  Judicial review would be enhanced if all general conclusions
In this case, there are allegations challenging the adequacy
                                                                  of an agency were accompanied by a statement of underlying
of the Commission's findings of fact, contending that the
                                                                  facts. The plain language of the statute, however, precludes
Commission's action is not supported by substantial evidence,
                                                                  such a construction of section 16(b). By limiting the fact-
and asserting that the Commission's orders are arbitrary and
                                                                  finding requirement to findings “set forth in statutory
capricious. The court of appeals purported to base its decision
                                                                  language,” the legislature has expressed its intention in
solely on the conclusion that the Commission's findings of
                                                                  this matter. We may not impose an additional fact-finding
fact are arbitrary and capricious. In its opinion, however,
                                                                  requirement under the guise of statutory construction. Cf.
the intermediate court touched upon each of the above three
                                                                  Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154, 158
contentions. Hence, we shall address each of these matters.
                                                                  (1960).

                                                                  Gonzales County holds that an accompanying statement of
                      Findings of Fact                            underlying facts is required when an ultimate finding of
                                                                  fact embodies statutory language. This construction has been
 [1] The logical first step in evaluating the Commission's        followed in post-APTRA cases. See, e.g., Gage v. Railroad
order is to examine the agency's fact findings to determine       Commission, 582 S.W.2d 410, 414 (Tex.1979); Imperial
whether they meet the statutory requirements. See Auto            American Resources Fund, Inc. v. Railroad Commission, 557
Convoy Co. v. Railroad Commission, 507 S.W.2d 718, 719            S.W.2d 280, 286 (Tex.1977). Therefore, we hold that section
(Tex.1974). Section 16(b) of the APTRA requires that all          16(b) of the APTRA requires an accompanying statement of
findings of fact, “if set forth in statutory *451 language,”      underlying facts only when the ultimate fact finding embodies
must be accompanied by a supporting statement of underlying       a mandatory fact finding set forth in the relevant enabling
facts. We must determine the meaning of these words in the
                                                                  act. 2 An agency may not avoid this statutory requirement
present context.
                                                                  by simply rewording its criteria; section 16(b) extends to
                                                                  all statutory fact findings that represent the criteria that the
In Lewis v. Gonzales County Savings and Loan Association,
                                                                  legislature has directed the agency to consider in performing
474 S.W.2d 453 (Tex.1971), we were asked to construe an
                                                                  its function.
analogous fact-finding requirement in the Savings and Loan
Act. Tex.Rev.Civ.Stat.Ann. art. 852a, § 11.11(4). Therein, we
                                                                   [2] [3] [4] The characteristics of proper findings of fact,
held:
                                                                  as well as their purposes, are well established. Valid findings
            We are of the view this requirement                   of fact must be clear and specific. Gage, 582 S.W.2d at 414.
            applies only to findings of fact in the               A mere conclusion or a recital of evidence is inadequate.
            commissioner's orders which are “set                  Thompson v. Railroad Commission, 150 Tex. 307, 240
            forth in statutory language.” [footnote               S.W.2d 759, 761–62 (1951). The required underlying facts
            omitted]. When findings are made                      may not be presumed from findings of a conclusional nature.
            in the language of the Rules and                      Morgan Drive Away, Inc. v. Railroad Commission, 498
            Regulations that do not embody                        S.W.2d 147, 152 (Tex.1973). In general, underlying findings
            statutory language, they need not be                  of fact must be such that the reviewing court can fairly
                                                                  and reasonably say that the underlying findings support the



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             3
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


statutorily required criteria. Railroad Commission v. Entex,    there are sufficient findings such that we can fairly and
Inc., 599 S.W.2d 292, 298 (Tex.1980); Railroad Commission       reasonably say that the underlying or basic facts support
v. Graford Oil Corp., 557 S.W.2d 946, 950 (Tex.1977).           the Commission's conclusions on the ultimate or statutory
                                                                criteria. We hold, therefore, that the underlying findings of
The underlying findings of fact required by the APTRA have      fact made by the Commission satisfy the requirements of
a substantial statutory purpose and are more than a technical   section 16(b) of the APTRA.
prerequisite. *452 Morgan Drive Away, Inc., 498 S.W.2d
at 150. This Court set forth the purposes of such findings of
fact in Miller v. Railroad Commission, 363 S.W.2d 244, 245–
                                                                              The Substantial Evidence Rule
46 (Tex.1962) as follows:
                                                                  [8]     [9] The APTRA codifies the principle of judicial
            One purpose no doubt is to restrain any
                                                                 review under the substantial evidence rule. Section 19(e)(5)
            disposition on the part of the [agency]
                                                                 authorizes a reviewing court to test an agency's findings,
            to grant a certificate without a full
                                                                 inferences, conclusions, and decisions to determine whether
            consideration of the evidence and a
                                                                 they are reasonably supported by substantial evidence in
            serious appraisal of the facts. Another
                                                                 view of the reliable and probative evidence in the record
            is to inform protestants of the facts
                                                                 as a whole. See Railroad Commission v. Shell Oil Co., 139
            found so that they may intelligently
                                                                 Tex. 66, 161 S.W.2d 1022, 1029–30 (1942). In applying the
            prepare and present an appeal to the
                                                                 test, the court is prohibited from substituting its judgment
            courts. Still another is to assist the
                                                                 for that of the agency as to the weight of the evidence
            courts in properly exercising their
                                                                 on questions committed to agency discretion. See Gerst v.
            function of reviewing the order.
                                                                 Guardian Savings and Loan Association, 434 S.W.2d 113,
                                                                 115 (Tex.1968). The reviewing court may reverse an agency
 [5] [6] This Court has neither the right nor the authority decision because of the absence of substantial evidence only if
to lay out a precise form of findings to be made by the          such absence has prejudiced substantial rights of the litigant.
Commission. Id. at 246. On the other hand, we may make           APTRA, § 19(e).
suggestions as to the form of the agency record in the
interest of proper judicial review. See Graford Oil Corp., 557    [10] [11] [12] Although substantial evidence is more than
S.W.2d at 952 n. 6. Proper underlying (basic) findings of fact   a mere scintilla, Alamo Express, Inc. v. Union City Transfer,
should follow the guidelines we previously have noted: they      158 Tex. 234, 309 S.W.2d 815, 823 (1958), the evidence in
should be clear, specific, non-conclusory, and supportive of     the record actually may preponderate against the decision of
the ultimate statutory finding. Mere recitals of testimony or    the agency and nonetheless amount to substantial evidence.
references to or summations of the evidence are improper.        Lewis v. Metropolitan Savings and Loan Association, 550
Such findings should be stated as the agency's findings. The     S.W.2d 11, 13 (Tex.1977). The true test is not whether the
findings should relate to material basic facts and should relate agency reached the correct conclusion, but whether some
to the ultimate statutory finding that they accompany. In        reasonable basis exists in the record for the action taken by
general, the findings of fact required by APTRA § 16(b)          the agency. Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).
should be sufficient to serve the overall purposes evident in    A reviewing court is not bound by the reasons given by an
the legislative requirement that they be made.                   agency in its order, provided there is a valid basis for the
                                                                action taken by the agency. *453 Railroad Commission v.
 [7] The record of this case discloses that the Commission      City of Austin, 524 S.W.2d 262, 279 (Tex.1975). Thus, the
made almost five hundred findings of fact covering              agency's action will be sustained if the evidence is such that
approximately forty-eight pages. The orders of the              reasonable minds could have reached the conclusion that
Commission includes ultimate findings on each of the            the agency must have reached in order to justify its action.
criteria required by HPDA section 3.10(b). In addition, the     Suburban Utility Corp. v. Public Utility Commission, 652
Commission's findings contain numerous underlying facts in      S.W.2d 358, 364 (Tex.1983).
support of these statutory findings. Many of these findings
do not satisfy the requirements previously stated since they     [13] The findings, inferences, conclusions, and decisions
are nothing more than recitals of evidence. Nevertheless,       of an administrative agency are presumed to be supported



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


by substantial evidence, and the burden is on the contestant           We do admonish the Commission to adhere to the guidelines
to prove otherwise. Imperial American Resources Fund, Inc.             we have set forth previously regarding findings of fact.
v. Railroad Commission, 557 S.W.2d 280, 286 (Tex.1977).
Hence, if there is evidence to support either affirmative or           Our second inquiry concerns whether the findings, inferences,
negative findings on a specific matter, the decision of the            and conclusions that relate to health care needs are supported
agency must be upheld. Gerst v. Goldsbury, 434 S.W.2d 665,             by substantial evidence. We hold that they are. Our
667 (Tex.1968); see also Lewis v. Jacksonville Building and            conclusion is based upon the principles of judicial review that
Loan Association, 540 S.W.2d 307, 311 (Tex.1976).                      we have reiterated herein. As required by APTRA section
                                                                       19(e), we have tested each material finding, inference, and
 [14] The record before this Court is extensive and contains           conclusion for evidentiary support. There is in the record
substantial information relevant to the Commission's inquiry.          substantial evidence to support the underlying facts discussed
This controversy was hotly contested, and the record contains          above and the ultimate fact to which they relate.
evidence favoring all three applicants. We will address one
statutory criterion that supports the Commission's decision in
this case. Under HPDA section 3.10(b)(1), the Commission
                                                                              Arbitrary and Capricious Standard of Review
considers “whether a proposed project is necessary to meet
the healthcare needs of the community or population to be               [15] The court of appeals held that the validity of an
served....” The Commission found that Memorial and Green               agency's inferences of ultimate facts or its reasoning process
Oaks were necessary, but that Charter Medical was not.                 is judged by whether such inferences are arbitrary *454 and
                                                                       capricious. The court also concluded that the sole purpose
On judicial review, we look first to the underlying findings of        of the substantial evidence rule is to measure the validity
fact made in support of the ultimate finding of fact contrary          of the process by which the agency has inferred stated
to Charter Medical's position. Factors unfavorable to Charter          basic facts from the evidence and matters officially noticed.
Medical include the following: Charter Medical would not               Our discussion of the substantial evidence rule discloses the
be near or connected with a general hospital and ambulance             erroneous nature of these conclusions. Because the court
service would be required to transfer a patient to a general           of appeals has, in effect, engaged in a substantial evidence
hospital for medical treatment; Charter Medical was not                review of the Commission's order, we also have addressed
accessible by public transportation; Charter Medical failed to         that point. We now turn to a discussion of the arbitrary and
establish physician interest in its facility similar to the interest   capricious standard of review.
expressed in the other two facilities by testifying physicians;
and Charter Medical failed to support its projected occupancy          Throughout the long history of the substantial evidence
rates with competent evidence. Findings on these matters               rule the existence of substantial evidence has been equated
were relatively more favorable regarding both Memorial                 with fair and reasonable conduct on the part of the
and Green Oaks. Other material findings concerned the                  agency. Conversely, agency decisions that are unsupported
probable absence of certain recreational facilities at Charter         by substantial evidence have been deemed arbitrary and
Medical, the unnecessary duplication of specified services             capricious. Thus, the two terms have many times been
and equipment by Charter Medical, and the negative report on           considered two sides of the same coin. See, e.g., Benson
Charter Medical by the Texas Area 5 Health Systems Agency.             v. San Antonio Savings Association, 374 S.W.2d 423, 427
                                                                       (Tex.1963); City Savings Association v. Security Savings
Because the Commission correctly found that Charter                    and Loan Association of Dickinson, 560 S.W.2d 930, 932
Medical failed to establish that its facility was necessary to         (Tex.1978). On the other hand, cases have arisen in which a
meet the healthcare needs of the community, as required by             line of demarcation was drawn between these two concepts.
the statute, the Commission's order must be upheld. Cf. Gerst
v. Goldsbury, 434 S.W.2d at 667. We note that many of the              In Lewis v. Metropolitan Savings and Loan Association,
Commission's 213 findings on this criterion are improper and           550 S.W.2d 11 (Tex.1977), this Court was faced with an
irrelevant and were not considered by this Court. Moreover,            allegation that the agency action in question, in admitting and
we doubt the sufficiency of other ultimate findings made by            excluding evidence, had resulted in a denial of due process of
the Commission, although we reach no conclusion thereon.               law. The agency contended that the only issue on appeal was
                                                                       whether the decision was supported by substantial evidence;



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               5
Texas Health Facilities Com'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446 (1984)


                                                                       or constitutes an abuse of discretion although that conduct
a denial of due process would not provide a basis for reversal
                                                                       does not amount to a violation of any other provision of
so long as the agency's decision was upheld under substantial
                                                                       the APTRA or the agency's enabling act. The arbitrary and
evidence scrutiny. We held that instances may arise in which
                                                                       capricious standard of review historically has been construed
the agency's action is supported by substantial evidence, but
                                                                       narrowly, and we do not think that the legislature intended
is arbitrary and capricious nonetheless. One such instance is
                                                                       it to be interpreted as a broad, all-encompassing standard
when a denial of due process has resulted in the prejudice of
                                                                       for reviewing the rationale of agency actions. Under the
substantial rights of a litigant.
                                                                       foregoing definition of the arbitrary and capricious standard
                                                                       of review, we hold that the Commission's orders in this case
Another example of arbitrary action by an agency is Railroad
                                                                       are not arbitrary nor do they constitute an abuse of discretion.
Commission v. Alamo Express, 158 Tex. 68, 308 S.W.2d 843
(1958). Therein, this Court found that the agency had acted
                                                                       We conclude that the findings of fact made by the
in an arbitrary manner when it failed totally to make findings
                                                                       Commission comply with section 16(b) of the APTRA.
of fact and instead based its decision on findings in another
                                                                       The Commission's findings, inferences, conclusions, and
case. Arbitrary and capricious agency action also may be
                                                                       decisions are supported by substantial evidence and do not
found when an agency improperly bases its decision on non-
                                                                       constitute an abuse of discretion.
statutory criteria. Public Utility Commission v. South Plains
Electric Cooperative, Inc., 635 S.W.2d 954, 957 (Tex.App.
                                                                       The judgment of the court of appeals is reversed, and the
—Austin 1982, writ ref'd n.r.e.).
                                                                       judgment of the trial court is affirmed.
In enacting the APTRA, it is clear that the legislature intended
to distinguish between agency action that is not supported
                                                                       All Citations
by substantial evidence and agency action that is arbitrary
and capricious. We construe section 19(e)(6) of the APTRA              665 S.W.2d 446
to be a safeguard against agency conduct that is arbitrary


Footnotes
1      The matters required by section 3.10(b) to be included within the Commission's criteria may be found primarily in
       subsections 513.5, 513.11, 513.13, and 513.17 of Title 25 of the Texas Administrative Code. The non-mandatory factors
       are scattered throughout the other subsections of section 513. See Tex. Health Fac. Comm'n, 25 Tex.Admin.Code §§
       513.1–513.21 (May 1, 1982) (compiling Tex. Health Fac. Comm'n Rules 315.19.01.010 to .130, 3 Tex.Reg. 1361–64
       (1978), as amended 4 Tex.Reg. 2949–50 (1979)).
2      The HPDA does not require that the Commission make findings on certain factors before it may act; rather, the statute
       directs the Commission to include certain matters within its criteria for review and directs the Commission to act upon
       applications within established time limits. HPDA, §§ 3.10, 3.11. Nonetheless, the factors that the Commission must
       include among its criteria are the type of factors that fall within the scope of section 16(b) so that these findings of fact must
       be accompanied by a statement of underlying facts. Cf. Miller v. Railroad Commission, 363 S.W.2d 244, 245 (Tex.1962).


End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   6
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

                                                                   sufficiency of the evidence to support the judgment. Finally,
                                                                   Walker questions the composition and conduct of the jury.
                  2013 WL 3771302
                                                                   We affirm the trial court's judgment.
    Only the Westlaw citation is currently available.

          SEE TX R RAP RULE 47.2 FOR
    DESIGNATION AND SIGNING OF OPINIONS.                                                    Background
             MEMORANDUM OPINION                                    Doreatha Walker was hired as Head Start Director on a
              Court of Appeals of Texas,                           one-year probationary contract. In February 2009, several
                Houston (1st Dist.).                               months into her tenure and after concerns were raised about
                                                                   high levels of mold in the Head Start building, District
              Doreatha WALKER, Appellant
                                                                   Superintendent Dr. Michael Bergman held a meeting with
                          v.
                                                                   Head Start staff and parents to clarify the progress that had
              HITCHCOCK INDEPENDENT
                                                                   been made on addressing the mold problem. A few days later,
              SCHOOL DISTRICT, Appellee.                           Walker filed a workers' compensation form indicating she
                                                                   would be going on leave for mold-related health reasons. She
        No. 01–11–00797–CV.           |   July 16, 2013.
                                                                   also filed a grievance against Bergman for allegedly yelling at
On Appeal from the 405th District Court, Galveston County,         her during the meeting, although no one present at the meeting
Texas, Trial Court Case No. 09–CV–1439.                            remembered his doing so.

Attorneys and Law Firms                                            For the rest of February and most of March, Walker was
                                                                   absent on medical leave. Although absent, she continued to
Doreatha Walker, pro se.                                           email Bergman and Head Start board members about the
                                                                   mold issue and her fear of losing her job in retaliation for
Christopher B. Gilbert, for Hitchcock Independent School
                                                                   reporting the issue. In early March, days before her contract
District.
                                                                   was eligible for renewal, she threatened Bergman with a
Panel consists of Justices KEYES, MASSENGALE, and                  wrongful termination suit if the board did not vote to extend
BROWN.                                                             her employment as Head Start director. Despite concerns that
                                                                   Walker was not getting along well with Head Start board
                                                                   members and District personnel, Bergman recommended
               MEMORANDUM OPINION                                  Walker's employment be extended for another year. The next
                                                                   day Walker rescinded her grievance against Bergman.
MICHAEL MASSENGALE, Justice.
                                                                   A few weeks later, Walker attempted to return to work at
 *1 Appellant Doreatha Walker sued the Hitchcock                   the Head Start building. However, Bergman had directed
Independent School District for suspending her and                 her not to return to work because her medical leave form
recommending termination from her job as Head Start                stated that she could not yet return to the Head Start building,
Director. She contended that the District had retaliated against   which was the only place she could perform her duties as
her for reporting unsafe mold levels and other improprieties.      director. When Walker nevertheless arrived on campus, an
The jury found that Walker had not made those reports in           assistant superintendent directed her to leave on Bergman's
good faith or that the reports were not the cause of her           instructions. Walker refused to obey the directive, the police
suspension and recommendation of termination. The trial            were called, and she was escorted off the campus. After the
court entered judgment in favor of the school district.            incident, Walker informed Bergman that she felt the removal
                                                                   from campus was in retaliation for her raising the mold
On appeal, Walker alleges that the trial court erroneously         issue and again threatened to file suit if anyone attempted to
charged the jury, improperly admitted evidence, incorrectly        fire her. Bergman responded by warning Walker that further
applied the res judicata doctrine, and unfairly imposed time       unprofessional and insubordinate conduct would result in a
limits during the trial. She also complains that her directed      recommendation that her contract be terminated.
verdict motion was improperly denied, and she challenges the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

 *2 Walker's relations with Head Start board members and        the Head Start building and for her allegations that the
staff deteriorated throughout the following month. Rather       District had improperly claimed Head Start students for state
than heed Bergman's earlier advice to listen to others and      transportation reimbursement.
to cooperate with Head Start board members, Walker acted
imperiously and took control of a Head Start board meeting—     The trial court determined that the findings of the TEA
a meeting which she attended only at the invitation of board    hearing examiner and the education commissioner from the
members. The next day the president of the Head Start policy    termination appeal could be used in Walker's whistleblower
board declared her refusal to attend any future meetings with   suit. After a ten-day trial, two questions were submitted to the
Walker. Then, after a meeting during which Walker verbally      jury. Question One asked whether Walker's report of possible
accosted her, the Head Start staff administrative assistant     improprieties in how the District sought reimbursement for
filed a harassment grievance against her. Subsequently, the     transportation was made in good faith and was a cause for
secretary of the Head Start policy board, a parent volunteer,   Bergman's recommendation that she be terminated. Question
resigned, followed by the early retirement of the Head Start    Two asked whether Walker's reports of mold to health
nurse a few weeks later. Each expressed frustration with        agencies were made in good faith and were a cause of
Walker as the reason for leaving.                               her suspension with pay. The jury answered “No” to both
                                                                questions, and the trial court entered judgment in favor of the
Soon thereafter, on May 1, Bergman suspended Walker             District. Walker then filed this appeal.
by placing her on administrative leave with pay. He
was concerned about her failure to obey directives, her
insubordination, and the grievances and resignations of Head
                                                                                           Analysis
Start volunteers and staff. Two days later, Walker filed
a report with the Texas Education Agency alleging the            *3 Pro se litigants must comply with all applicable laws
District was claiming Head Start students for reimbursement     and rules of procedures, and they are held to the same
of transportation services that the District never provided.    standards as are licensed attorneys. See Mansfield State
After a District board meeting at which Bergman failed          Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex.1978); Kanow
to recommend that the board renew her contract, Walker          v. Brownshadel, 691 S.W.2d 804, 806 (Tex.App.-Houston
filed another grievance against Bergman. She alleged that       [1st Dist.] 1985, no writ). A pro se litigant is required
Bergman had retaliated against her for making whistleblower     to properly present her case on appeal, and we do not
reports about the alleged violations of transportation          make allowances or apply different standards for litigants
reimbursement rules and her mold complaints.                    appearing without the advice of counsel. See Morris v. Am.
                                                                Home Mortg. Servicing, Inc., 360 S.W.3d 32, 36 (Tex.App.-
Three months later, the District board accepted Bergman's       Houston [1st Dist.] 2011, no pet.). The Rules of Appellate
recommendation to terminate Walker's contract. Walker           Procedure require appellate briefs to contain clear and concise
appealed the termination to the TEA. After a hearing,           arguments with appropriate citations to the record and
the TEA hearing examiner agreed with the District's             supporting authorities. TEX.R.APP. P. 38.1(i). Nevertheless
proposed termination, documenting Walker's failure to follow    we construe briefs liberally, and substantial compliance with
directives, disrespect for authority, and imperious tone with   the rules is sufficient. SeeTEX.R.APP. P. 38.9.
superiors, subordinates, and parent volunteers. Thereafter,
the District board officially terminated Walker. The Texas      In her brief, Walker raises 29 points of error. Many of these
Commissioner of Education upheld the termination.               lack supporting authority or citations to the record. Other
                                                                points refer to hundreds or thousands of pages from the
After the board agreed to terminate her contract, Walker        record, which does not substantially comply with the briefing
filed suit against the District. She represented herself at     rules. See Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d
all stages of the trial court proceedings. She alleged that     197, 200–01 (Tex.1955) (holding that it is not the duty of
her May 1 suspension violated the Texas Whistleblower           the courts of appeals to independently search a voluminous
Act, TEX. GOV'T CODE ANN. §§ 554.001–.010 (West                 record to find evidence in support of a theory); Labrador Oil
2012). She alleged that Bergman violated the Whistleblower      Co. v. Norton Drilling Co., 1 S.W.3d 795, 803 (Tex.App.-
Act because he had suspended her for complaining to the         Amarillo 1999, no pet.). Many of the points of error are
local, state, and federal health agencies about the mold in     duplicative or incapable of being distinguished from other



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Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

points of error. But construing Walker's brief liberally, we     placing burden of proof on public-employee plaintiff). To
discern seven main issues. Walker complains of (1) error in      meet the causation requirement, the employee is not required
the jury charge, (2) incorrect application of the res judicata   to show that her reports of illegal conduct were the sole
doctrine, (3) improper admission of evidence, (4) unfair time    reason for the employer's adverse action. Tex. Dep't of Human
limits imposed during the trial, (5) denial of her directed      Servs. v. Hinds, 904 S.W.2d 629, 634 (Tex.1995). Instead,
verdict motion, (6) the sufficiency of the evidence to support   she must present some evidence that “but for” her reports,
the judgment, and (7) the composition and conduct of the jury.   the employer's suspension or termination would not have
                                                                 occurred when it did. Id. at 636;see also Zimlich, 29 S.W.3d
                                                                 at 68.
I. Jury charge
Walker challenges the jury charge and instructions. She          In this case the trial court submitted two Whistleblower
argues that the jury should have had more instructions about     Act questions based on the Texas Pattern Jury Charge. The
the causation element of her whistleblower claim, including      questions asked the jury if Walker's reports to the authorities
a specific instruction that an incorrect but good faith belief   were made in good faith and were a cause of her suspension
that a law was violated is sufficient for a whistleblower
                                                                 and the recommendation of termination. 1 Walker requested
claim. She also argues that the instruction for actual damages
                                                                 an alternate charge that included slightly different wording,
should have used her preferred wording, and that the damages
                                                                 left out the good-faith element in the mold-report question,
questions should have included an option for the jury to award
injunctive relief reinstating her to her former position.        and omitted the good-faith instruction. 2 However, Walker
                                                                 does not explain how the questions that were in the charge
We review a trial court's decision to submit or refuse a         were incorrect or resulted in the rendition of an improper
particular jury instruction for abuse of discretion. In re       judgment. See Shupe, 192 S.W.3d at 579–80 (explaining
V.L.K., 24 S.W.3d 338, 341 (Tex.2000). The trial court           how even improper instructions are harmless when there are
has considerable discretion to determine proper instructions.    answers sufficient to support the judgment).
Id. An appellate court will not reverse a judgment for
charge error unless that error “probably caused the rendition    The trial court acted within its discretion. The broad-form
of an improper judgment” or “probably prevented the              charge used in this case is appropriate for whistleblower
petitioner from properly presenting the case to the appellate    cases. See Zimlich, 29 S.W.3d at 68, 71 (upholding a jury
courts.”Thota v. Young, 366 S.W.3d 678, 687 (Tex.2012)           verdict using a broad-form submission). The charge includes
(citing TEX.R.APP. P. 44.1(a)). When the findings of             the good-faith and causation elements, while Walker's
the jury are sufficient to support the judgment, error in        proposed question on her report about mold lacked the good-
omitting an issue is harmless. Shupe v. Lingafelter, 192         faith element required by the Whistleblower Act. SeeTEX.
S.W.3d 577, 579 (Tex.2006). The trial court should refuse to     GOV'T CODE ANN. § 554.002; Levingston, 221 S.W.3d
submit unnecessary instructions even if they represent correct   at 226.Her mold question also unnecessarily required that
statements of the law. Rigdon Marine Corp. v. Roberts, 270       she establish that the mold reports were “the” cause of
S.W.3d 220, 228 (Tex.App.-Texarkana 2008, pet. denied);          her suspension, rather than merely “a” cause. See Hinds,
Riggs v. Sentry Ins., 821 S.W.2d 701, 704–05 (Tex.App.-          904 S.W.2d at 634–36 (holding that the employee is not
Houston [14th Dist.] 1991, writ denied).                         required to prove making a report was the sole cause of the
                                                                 employer's adverse action). Thus, the trial court did not abuse
                                                                 its discretion in not adopting Walker's proposed charge.
a. Liability questions
 *4 To prove a claim under the Whistleblower Act, a public       For the first time on appeal, Walker also complains that
employee must demonstrate that she reported a violation of       the submitted charge was incorrect because it omitted
law in good faith and that the adverse employment action         additional instructions on causation and definitions from
by the employer would not have occurred had the report not       the Whistleblower Act. Preservation of the issue of an
been made. City of Houston v. Levingston, 221 S.W.3d 204,        omitted instruction, however, requires that the appellant
226 (Tex.App.-Houston [1st Dist.] 2006, no pet.)(citing City     tender a written request to the trial court for submission
of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.2000));          of the instruction that is “in substantially correct wording.”
see alsoTEX. GOV'T CODE ANN. §§ 554.002, 554.004                 SeeTEX.R. CIV. P. 278; Union Pac. R.R. Co. v. Williams,
(West 2012) (requiring good faith report to authorities and      85 S.W.3d 162, 166 (Tex.2002); see alsoTEX.R.APP. P.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           3
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

33.1(a) (preserving a complaint for appellate review requires
the complaint be made to the trial court). Because Walker          Collateral estoppel, also known as issue preclusion, prevents
did not submit a request for these additional instructions or      relitigation of particular issues already resolved in a prior
definitions to the trial court, she has failed to preserve her     suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav.,
complaint for appellate review.                                    837 S.W.2d 627, 628 (Tex.1992). A party asserting collateral
                                                                   estoppel must establish that (1) the facts sought to be litigated
                                                                   in the second action were fully and fairly litigated in the
b. Damages question                                                first action, (2) those facts were essential to the judgment in
 *5 Walker next complains that the damages section of              the first action, and (3) the parties were cast as adversaries
the jury charge did not include an option for reinstatement        in the first action. John G. & Marie Stella Kenedy Mem'l
and misstated the proper standard for actual damages. These        Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex.2002); Houtex
complaints fail to demonstrate harm, because any alleged           Ready Mix Concrete & Materials v. Eagle Constr. & Envtl.
error with respect to damages did not affect the rendition         Servs., L.P., 226 S.W.3d 514, 519 (Tex.App.-Houston [1st
of the judgment against Walker when the jury did not find          Dist.] 2006, no pet.). To invoke collateral estoppel on the
in her favor for liability. See Thota, 366 S.W.3d at 686–87;       basis of a prior administrative order, a party must show the
Shupe, 192 S.W.3d at 579–80;see also City of Brownsville           administrative agency was acting in a judicial capacity and
v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (noting an             had jurisdiction to resolve the disputed issues of fact, which
improper question is immaterial and harmless when the              the parties had an adequate opportunity to litigate. In re
answer cannot alter the effect of a verdict). Walker also cannot   Edwards Aquifer Auth., 217 S.W.3d 581, 588 (Tex.App.-San
complain of the actual-damages measure because the trial           Antonio 2006, no pet.).
court adopted her proposed measure of damages. SeeTEX.R.
CRV. P. 274 (requiring a party disputing the charge to point        *6 The TEA has jurisdiction over an educator's disputed
out distinctly the objectionable matter for each part of the       employment contract, as the agency has jurisdiction over
charge the party objects to); In re A.V., 113 S.W.3d 355, 362–     disputes involving any person aggrieved by the actions of
63 (Tex.2003).                                                     any board of education. Muckelroy v. Richardson Indep.
                                                                   Sch. Dist., 884 S.W.2d 825, 831 (Tex.App.-Dallas 1994, writ
For the foregoing reasons, we overrule Walker's points of          denied). Since the agency issued a final decision after Walker
error 1, 2, 11–14, 17, 19, and 23.                                 and the District had an adequate opportunity to fully and
                                                                   fairly litigate her termination, the hearing examiner's findings
                                                                   were binding on the trial court. See id.; see also Mullinax v.
II. Collateral estoppel
                                                                   Texarkana Indep. Sch. Dist., 252 F.3d 1356 (5th Cir.2001)
Walker alleges that the District was allowed to use material
                                                                   (TEA hearing examiner's findings made in judicial capacity
from her administrative proceedings while she was not and
                                                                   entitled to preclusive effect).
that this was an improper application of the res judicata
and collateral estoppel doctrines. 3 Before trial, Walker had      The hearing examiner found that Walker was validly
appealed her termination in administrative proceedings             terminated due to her “intransigence, duplicity, and defiance
before a TEA hearing examiner and commissioner of                  of authority” in almost every conflict between her and District
education. Under the doctrine of collateral estoppel, the trial    employees. The examiner catalogued the numerous disputes
court allowed the parties to present the findings from the         and incidents that took place in the spring of 2009 which
administrative hearing, but not to dispute those findings.         preceded Walker's suspension and termination. The course
In the administrative action, it was found that Walker had         of these events was relevant to the District's argument that
increasingly poor relations with her superiors and other adults    Walker's insubordination, not her whistleblowing, was the
involved in the Head Start program in the months before            cause of her suspension and ultimate termination. Because
her suspension. The hearing examiner found that Walker's           the issue of why she was terminated was fully and fairly
policies and behavior violated several of her job requirements     litigated in the administrative proceeding, the District was
and described several incidents in which her attitude led          entitled to the preclusive effect of those findings. Walker does
to conflict, such as when she refused to leave the Head            not indicate where in the record that the District did anything
Start building and had to be escorted away by police. From         more than reference the examiner's findings, as it was entitled
these findings, the examiner concluded that the District was       to do. Because she attempted to dispute the administrative
authorized to terminate her probationary contract.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              4
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

findings, however, the trial court acted properly in stopping       Start program. See, e.g., In re Bexar Cnty. Criminal Dist.
her from relitigating the issue of why she was terminated.          Attorney's Office, 224 S.W.3d 182, 188–89 (Tex.2007)
Thus, the trial court did not err in its application of the         (statements are admissible if offered for their effect on the
collateral estoppel doctrine.                                       listener rather than the truth of the matter asserted).

Accordingly, we overrule Walker's points of error 3, 5, 15,         Walker also complains that the trial court prevented her from
and 29. 4                                                           pursuing a line of questioning into the District's alleged past
                                                                    retaliation against other employees. The trial court sustained
                                                                    the District's objection because the alleged retaliation was not
III. Evidentiary rulings                                            related to Walker's whistleblower claims. Walker does not
Walker challenges several of the trial court's evidentiary          indicate how this testimony would have altered the judgment
rulings. She complains that the court refused to admit a            in the case and we find any possible error to be harmless.
newspaper article about mold in the Head Start building, and
that it admitted several email messages offered by the District     Because the trial court did not err in admitting or excluding
over her hearsay objection.                                         the evidence it did, and in any case no harm has been shown,
                                                                    we overrule Walker's points of error 6,7, 16, and 20.
The inclusion and exclusion of evidence is committed to the
trial court's sound discretion. Tex. Dep't of Transp. v. Able,
35 S.W.3d 608, 617 (Tex.2000). The party seeking to reverse         IV. Time limits on questioning
a judgment based on evidentiary error must prove that the           Walker complains that the trial court admonished her to
error probably resulted in an improper judgment, usually by         speed up the presentation of her case, imposed time limits
showing that the judgment turns on the particular evidence          on the trial length, and shortened her time for questioning
excluded or admitted. Id.;City of Brownsville, 897 S.W.2d at        witnesses and presenting her deposition testimony. The trial
753–54.We review the entire record to determine whether the         court has great discretion in the conduct of the trial.Dow
complaining party has demonstrated that the judgment turns          Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.2001). A
on the particular evidence admitted. Bay Area Healthcare            trial judge is afforded the discretion to express himself while
Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex.2007).              controlling the trial. Bott v. Bott, 962 S.W.2d 626, 631
                                                                    (Tex.App.Houston [14th Dist.] 1997, no pet.). A trial court
With respect to the news reports unsuccessfully offered into        may properly intervene to maintain control in the courtroom,
evidence by Walker, newspaper articles that are offered to          to expedite the trial, and to prevent what it considers to be a
prove the truth of what the article is reporting are inadmissible   waste of time.Francis, 46 S.W.3d at 241; Hoggett v. Brown,
hearsay. TEX.R. EVID. 801(d); Deramus v. Thornton, 160              971 S.W.2d 472, 495 (Tex.App.-Houston [14th Dist.] 1997,
Tex. 494, 333 S.W.2d 824, 831 (Tex.1960). Walker offered            pet. denied); see also Landis v. N. Am. Co., 299 U.S. 248,
them to prove that there was mold in the Head Start                 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (a trial court has
building-an inadmissible hearsay purpose. TEX.R. EVID.              the inherent power to control the disposition of cases with
802. Because the articles were inadmissible hearsay, the trial      economy of time and effort for itself, for counsel, and for
court did not abuse its discretion in refusing their admission.     litigants).
The newspaper articles in question were also duplicative of
facts in evidence. They show only that there was mold in the        The trial court in this case acted within its authority
Head Start building, which was an undisputed fact in this case.     in managing the trial's time limits. The trial court often
                                                                    attempted to help Walker by encouraging her to speed up her
 *7 Walker complains that the trial court admitted several          questioning to keep the jury's interest. The trial judge warned
email messages to which she objected. The messages                  her that the trial was taking longer than anticipated and that
were reports from several people involved in the Head               he might have to impose time limits. When the trial court did
Start program which included complaints about Walker's              begin to impose time limits, it was to the detriment of the
argumentativeness and strange behavior. The trial court did         District's time for presenting its case in chief, not Walker's.
not err in admitting these messages because they were offered       Walker spent a vastly larger portion of the trial's length
to prove that Bergman received reports of the contentiousness       questioning witnesses than the District did. Critically, Walker
and conflict caused by Walker's management of the Head              identifies no particular instance when she was prevented from
                                                                    finishing an important line of questions or she was unable to


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              5
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

present important evidence due to a time limit imposed by the      175, 176 (Tex.1986); Airgas–Sw., 390 S.W.3d at 478.The
trial court.                                                       jurors are the sole judges of the credibility of the witnesses
                                                                   and the weight to be given to their testimony. City of Keller,
*8 Accordingly, we overrule points of error 8 and 24 to 27.        168 S.W.3d at 819.

                                                                   To prove a claim under the Whistleblower Act, an employee
V. Denial of Walker's request for directed verdict                 must prove by a preponderance of the evidence that the
Walker complains that the trial court denied her motion for a      retaliatory conduct by the employer would not have occurred
directed verdict. Specifically, she argues that she should have    when it did if the employee had not reported the violation
had the opportunity to orally argue her motion, which was an       of law. Zimlich, 29 S.W.3d at 67.There is a rebuttable
opportunity afforded to the defendant but not to her.              presumption that the report of a law violation caused the
                                                                   employee's termination or suspension if the termination or
The record does not reflect that Walker was denied an              suspension occurs no later than 90 days after the report.
opportunity to argue her motion. The District was permitted        TEX. GOV'T CODE ANN. § 554.004(a). If the employer
to argue its motion for directed verdict orally, but Walker        presents positive evidence to rebut the presumption that the
submitted a written argument in support of her motion, so          adverse employment action was due to the report, then the
she did not need the opportunity to make an additional oral        presumption of a causal connection between the report and
argument. See Dillard v. Broyles, 633 S.W.2d 636, 645              termination or suspension is disregarded. Tex. A & M Univ. v.
(Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.) (Texas Rule      Chambers, 31 S.W.3d 780, 784 (Tex.App.-Austin 2000, pet.
of Civil Procedure 268 only requires specificity in directed       denied). Then the employee must produce evidence to support
verdict motions, and this can be met with an oral or written       the contention that reporting the violation of law caused the
argument). She also did not object to the trial court about        employer to retaliate. Zimlich, 29 S.W.3d at 68.
her argument being transmitted in writing rather than orally.
SeeTEX.R.APP. P. 33.1.                                              *9 The District presented ample evidence to rebut the
                                                                   presumption that Walker was suspended and recommended
We overrule Walker's points of error 4, 9, and 10.                 for termination because she filed reports of safety and
                                                                   funding violations. In addition to numerous emails and letters
                                                                   describing Walker's poor working relationship with others
VI. Sufficiency of the evidence
                                                                   associated with the Head Start program, numerous witnesses
Walker argues the evidence was not legally and factually
                                                                   testified that she instigated conflict and problems as Head
sufficient to support the jury verdict. In reviewing a verdict
                                                                   Start director. The jurors were able to weigh Bergman's
for legal sufficiency, we “must view the evidence in the light
                                                                   testimony that he had not suspended Walker or recommended
most favorable to the verdict, crediting favorable evidence if
                                                                   termination due to her filing the reports. See City of Keller,
reasonable jurors could, and disregarding contrary evidence
                                                                   168 S.W.3d at 819.The findings of the administrative hearing
unless reasonable jurors could not.”City of Keller v. Wilson,
                                                                   examiner attested to the same problems with Walker's
168 S.W.3d 802, 807 (Tex.2005). If there is more than
                                                                   conduct. There was also evidence that Walker threatened
a scintilla of evidence to support the challenged finding,
                                                                   to file suit against the District if she were fired, and then
we must uphold it. Harris Cnty. v. Norris, 240 S.W.3d
                                                                   dropped the threat when Bergman recommended renewal of
255, 258 (Tex.App.-Houston [1st Dist.] 2006, pet. denied)
                                                                   her contract. This supports the conclusion that Walker had
(citing Formosa Plastics Corp. USA v. Presidio Eng'rs
                                                                   not necessarily filed the reports in good faith, but instead as
& Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998)). In
                                                                   a means of pressuring Bergman.
reviewing a factual sufficiency complaint, we must first
examine all of the evidence. Lofton v. Tex. Brine Corp., 720
                                                                   Accordingly, there was sufficient evidence, both legally and
S.W.2d 804, 805 (Tex.1986); Airgas–Sw., Inc. v. IWS Gas &
                                                                   factually, to support the jury's verdict that Walker was not
Supply of Tex., Ltd., 390 S.W.3d 472, 478 (Tex.App.Houston
                                                                   suspended for whistleblowing. We overrule Walker's points
[1st Dist.] 2012, pet. denied). After considering and weighing
                                                                   of error 18 and 22.
all the evidence, we set aside the fact finding only if it is so
contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Marine Overseas Corp. v. Ellis, 971      VII. Jury issues
S.W.2d 402, 406–07 (Tex.1998); Cain v. Bain, 709 S.W.2d


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            6
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

                                                                   SeeTEX.R.APP. P. 44.1. The alternate juror in this case was
Walker questions the composition and conduct of the jury
                                                                   seated, not after the testimony of many of her witnesses as
in her points of error 21 and 28. She alleges that the trial
                                                                   Walker alleges, but on the second day of trial and without
court abused its discretion by seating an alternate juror, who
                                                                   objection from Walker. The jury verdict against Walker was
was only seated after she had called most of her witnesses.
                                                                   unanimous, so even if the original juror had voted in her favor,
Additionally, she questions the propriety of the jurors sending
                                                                   the judgment against her would stand. SeeTEX.R. CIV. P. 292
notes to the judge regarding the length of the trial.
                                                                   (allowing non-unanimous verdicts or unanimous verdicts by
                                                                   fewer than twelve jurors); Yanes v. Sowards, 996 S.W.2d 849,
There is no requirement that the twelve original jurors
                                                                   852 (Tex.1999) (upholding trial court's decision to proceed
render the ultimate verdict with no substitutions. See Schlafly
                                                                   with trial and render judgment with only eleven jurors after
v. Schlafly, 33 S.W.3d 863, 869–70 (Tex.App.-Houston
                                                                   dismissing juror due to his grandfather's illness).
[14th Dist.] 2000, pet. denied) (noting neither the Texas
Constitution nor the Texas Rules of Civil Procedure prevent
                                                                    *10 Accordingly, we overrule Walker's points of error 21
seating alternate jurors). Walker had the same opportunity
                                                                   and 28.
to conduct voir dire on the alternate juror as on the original
jurors, and she failed to object to seating the alternate juror
during the trial. See id.(considering these factors in holding
the seating of an alternate juror harmless). And jurors are                                 Conclusion
allowed to communicate using notes with the trial court.
SeeTEX.R. CIV. P. 285 (allowing jury to communicate with           Having overruled all of Walker's points of error, we affirm
the court either orally or in writing).                            the judgment of the trial court.


Any error in replacing the original juror with an alternate or
                                                                   All Citations
allowing the jury to send notes to the judge was harmless
in this case. We cannot reverse a judgment unless the error        Not Reported in S.W.3d, 2013 WL 3771302
probably caused the rendition of an improper judgment.


Footnotes
1      Specifically, Question One stated:
             Was Doreatha Walker's report to the Texas Education Agency (“TEA”) on May 3, 2009, in which she accused the
             District of improperly reporting Head Start students to the State to gain additional transportation funding, made in
             good faith and a cause of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board
             meeting?
          Question Two stated:
             Were Doreatha Walker's reports to the Galveston County Health Department, the Texas Department of State Health,
             and the Environmental Protection Agency in February 2009 regarding the presence of mold in the Kids First Head
             Start Building made in good faith and a cause of her suspension on May 1, 2009?
          Both questions included this instruction about “good faith”:
             “Good faith” means that (1) Doreatha Walker believed that the conduct reported was a violation of law, and (2) her
             belief was reasonable in light of her training and experience.
2      Walker's proposed jury charge questions were:
             1. Was Doreatha Walker's report to the (TEA) on May 3, 2009, in which she accused the District of improperly
             reporting Head Start students to the State to gain additional transportation funding, made in good faith and a cause
             of Dr. Michael Bergman's statements to the Board of Trustees at the May 19, 2009 Board meeting?
             2. Were the reports of mold to the Galveston County Health Department, Texas Department of State Health and
             Environmental Protection Agency the cause of Walker's suspension on May 1, 2009?
3      In point of error 3, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to create a new
       ‘Affirmative Defense’ during the Trial to ambush and prejudice Mrs. Walker.”The new affirmative defense was “when they
       told the Jury Plaintiff did not identify a law being violated,” and she objected. She has not identified where in the record
       the District made this argument or where the trial court allowed it to be presented. Instead she cited the entire thirteen-
       volume record. As we cannot find where in the record an allegedly improper act occurred, we overrule plaintiff's point of



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              7
Walker v. Hitchcock Independent School Dist., Not Reported in S.W.3d (2013)
2013 WL 3771302

      error 3 for failure to provide appropriate record citations. SeeTEX.R.APP. P. 38.1(i); Saldana v. Garcia, 155 Tex. 242,
      285 S.W.2d 197, 200–01 (Tex.1955) (explaining that the appellate courts are not required to search through voluminous
      records to find the parties' citations for them).
4     In point of error 29, Walker claims the trial court abused its discretion because “it allowed Hitchcock ISD to bring up
      things ... denied in their Motion for Limine.”She offers no argument to support this allegation and provides no citations
      for guidance beyond this bare assertion. As we cannot find where in the record an allegedly improper act occurred, we
      overrule plaintiff's point of error 29 for failure to reference authority or the record. SeeTEX.R.APP. P. 38.1(i).


End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




             © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             8
§ 134.002. Findings and Declaration of Policy, TX NAT RES § 134.002




  Vernon's Texas Statutes and Codes Annotated
    Natural Resources Code (Refs & Annos)
      Title 4. Mines and Mining (Refs & Annos)
        Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos)
           Subchapter A. General Provisions

                                           V.T.C.A., Natural Resources Code § 134.002

                                       § 134.002. Findings and Declaration of Policy

                                                          Currentness


The legislature finds and declares that:


  (1) the Congress of the United States has enacted the federal Act, which provides for the establishment of a nationwide
  program to regulate surface coal mining and reclamation and which vests exclusive authority in the Department of the Interior
  over the regulation of surface coal mining and reclamation in the United States;


  (2) Section 101 of the federal Act contains the finding by Congress that because of the diversity in terrain, climate, biologic,
  chemical, and other physical conditions in areas subject to mining operations, the primary governmental responsibility for
  developing, authorizing, issuing, and enforcing regulations for surface mining and reclamation operations subject to that Act
  should rest with the states;


  (3) Section 503 of the federal Act provides that each state may assume and retain exclusive jurisdiction over the regulation
  of surface coal mining and reclamation operations in that state by obtaining approval of a state program of regulation that
  demonstrates that the state is able to carry out the provisions and meet the purposes of that Act;


  (4) Section 503 of the federal Act further provides that a state wishing to assume exclusive jurisdiction over the regulation of
  surface coal mining and reclamation operations in the state must have a state law that provides for the regulation of surface
  coal mining and reclamation operations in accordance with that Act; and


  (5) this state wishes to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations
  in the state under the federal Act.


Credits
Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.


V. T. C. A., Natural Resources Code § 134.002, TX NAT RES § 134.002
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020




  Vernon's Texas Statutes and Codes Annotated
    Natural Resources Code (Refs & Annos)
      Title 4. Mines and Mining (Refs & Annos)
        Chapter 134. Texas Surface Coal Mining and Reclamation Act (Refs & Annos)
           Subchapter B. Powers and Duties of Commission

                                       V.T.C.A., Natural Resources Code § 134.020

                         § 134.020. Designation of Area as Unsuitable for Surface Coal Mining

                                                         Currentness


(a) On petition under Section 134.017, the commission shall designate an area unsuitable for all or certain types of surface coal
mining operations if the commission determines that reclamation under this chapter is not technologically and economically
feasible.


(b) On petition under Section 134.017, the commission may designate a surface area unsuitable for certain types of surface coal
mining operations if those operations will:


  (1) be incompatible with existing state or local land use plans or programs;


  (2) affect fragile or historic land in which the operations could result in significant damage to important historic, cultural,
  scientific, and aesthetic values and natural systems;


  (3) affect renewable resource lands, including aquifers and aquifer recharge areas, in which the operations could result in a
  substantial loss or reduction of long-range productivity of water supply or of food or fiber products; or


  (4) affect natural hazard land, including areas subject to frequent flooding and areas of unstable geology, in which the
  operations could substantially endanger life and property.


(c) Sections 134.016 through 134.019 and this section do not apply to land:


  (1) for which substantial legal and financial commitments in a surface coal mining operation or proposed operation were in
  existence before January 4, 1977;


  (2) on which surface coal mining operations were being conducted on August 3, 1977; or


  (3) on which surface coal mining operations are being conducted under a permit issued under this chapter.


Credits
Added by Acts 1995, 74th Leg., ch. 76, § 12.02(a), eff. Sept. 1, 1995.


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                            1
§ 134.020. Designation of Area as Unsuitable for Surface..., TX NAT RES § 134.020




V. T. C. A., Natural Resources Code § 134.020, TX NAT RES § 134.020
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
§ 16.312. Purpose, TX WATER § 16.312




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle C. Water Development
           Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos)
              Subchapter I. Flood Insurance (Refs & Annos)

                                               V.T.C.A., Water Code § 16.312

                                                     § 16.312. Purpose

                                                        Currentness


The State of Texas recognizes the personal hardships and economic distress caused by flood disasters since it has become
uneconomic for the private insurance industry alone to make flood insurance available to those in need of such protection
on reasonable terms and conditions. Recognizing the burden of the nation's resources, congress enacted the National Flood
Insurance Act of 1968, as amended (42 U.S.C. Sections 4001 through 4127), whereby flood insurance can be made available
through coordinated efforts of the federal government and the private insurance industry, by pooling risks, and the positive
cooperation of state and local government. The purpose of this subchapter is to evidence a positive interest in securing flood
insurance coverage under this federal program and to so procure for those citizens of Texas desiring to participate and in
promoting the public interest by providing appropriate protection against the perils of flood losses and in encouraging sound
land use by minimizing exposure of property to flood losses.


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977.


V. T. C. A., Water Code § 16.312, TX WATER § 16.312
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 16.3145. National Flood Insurance Program Orders or..., TX WATER § 16.3145




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle C. Water Development
           Chapter 16. Provisions Generally Applicable to Water Development (Refs & Annos)
              Subchapter I. Flood Insurance (Refs & Annos)

                                             V.T.C.A., Water Code § 16.3145

                         § 16.3145. National Flood Insurance Program Orders or Ordinances

                                                       Currentness


The governing body of each city and county shall adopt ordinances or orders, as appropriate, necessary for the city or county
to be eligible to participate in the National Flood Insurance Program.


Credits
Added by Acts 1999, 76th Leg., ch. 1360, § 1, eff. Aug. 30, 1999.


V. T. C. A., Water Code § 16.3145, TX WATER § 16.3145
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 26.011. In General, TX WATER § 26.011




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter B. General Powers and Duties

                                               V.T.C.A., Water Code § 26.011

                                                     § 26.011. In General

                                                          Currentness


Except as otherwise specifically provided, the commission shall administer the provisions of this chapter and shall establish the
level of quality to be maintained in, and shall control the quality of, the water in this state as provided by this chapter. Waste
discharges or impending waste discharges covered by the provisions of this chapter are subject to reasonable rules or orders
adopted or issued by the commission in the public interest. The commission has the powers and duties specifically prescribed
by this chapter and all other powers necessary or convenient to carry out its responsibilities. This chapter does not apply to
discharges of oil covered under Chapter 40, Natural Resources Code.


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.065,
eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 10, § 4, eff. March 28, 1991.



Notes of Decisions (8)

V. T. C. A., Water Code § 26.011, TX WATER § 26.011
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 26.023. Water Quality Standards, TX WATER § 26.023




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter B. General Powers and Duties

                                               V.T.C.A., Water Code § 26.023

                                             § 26.023. Water Quality Standards

                                                          Currentness


The commission by rule shall set water quality standards for the water in the state and may amend the standards from time to time.
The commission has the sole and exclusive authority to set water quality standards for all water in the state. The commission
shall consider the existence and effects of nonpoint source pollution, toxic materials, and nutrient loading in developing water
quality standards and related waste load models for water quality. The commission shall develop standards based on all quality
assured data obtained by the commission, including the local watershed and river basin database described by Section 26.0135(c)
(2). In this section, “quality assured data” has the meaning assigned by Section 26.0135(i).


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.072,
eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 294, § 3, eff. June 7, 1991; Acts 1997, 75th Leg., ch. 101, § 3, eff. Sept. 1, 1997.



Notes of Decisions (1)

V. T. C. A., Water Code § 26.023, TX WATER § 26.023
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
§ 26.171. Inspection of Public Water, TX WATER § 26.171




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter E. Authority of Local Governments

                                               V.T.C.A., Water Code § 26.171

                                           § 26.171. Inspection of Public Water

                                                         Currentness


A local government may inspect the public water in its area and determine whether or not:


  (1) the quality of the water meets the state water quality standards adopted by the commission;


  (2) persons discharging effluent into the public water located in the areas of which the local government has jurisdiction have
  obtained permits for discharge of the effluent; and


  (3) persons who have permits are making discharges in compliance with the requirements of the permits.


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103,
eff. Sept. 1, 1985.



Notes of Decisions (1)

V. T. C. A., Water Code § 26.171, TX WATER § 26.171
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                    © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  1
§ 26.172. Recommendations to Commission, TX WATER § 26.172




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter E. Authority of Local Governments

                                             V.T.C.A., Water Code § 26.172

                                      § 26.172. Recommendations to Commission

                                                       Currentness


A local government may make written recommendations to the commission as to what in its judgment the water quality standards
should be for any public water within its territorial jurisdiction.


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.103,
eff. Sept. 1, 1985.


V. T. C. A., Water Code § 26.172, TX WATER § 26.172
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                1
§ 26.176. Disposal System Rules, TX WATER § 26.176




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter E. Authority of Local Governments

                                               V.T.C.A., Water Code § 26.176

                                              § 26.176. Disposal System Rules

                                                          Currentness


(a) Every local government which owns or operates a disposal system is empowered to and shall, except as authorized in
Subsection (c) of this section, enact and enforce rules, ordinances, orders, or resolutions, referred to in this section as rules,
to control and regulate the type, character, and quality of waste which may be discharged to the disposal system and, where
necessary, to require pretreatment of waste to be discharged to the system, so as to protect the health and safety of personnel
maintaining and operating the disposal system and to prevent unreasonable adverse effects on the disposal system.


(b) The local government in its rules may establish the charges and assessments which may be made to and collected from all
persons who discharge waste to the disposal system or who have conduits or other facilities for discharging waste connected
to the disposal system, referred to in this subsection as “users.” The charges and assessments shall be equitable as between all
users and shall correspond as near as can be practically determined to the cost of making the waste disposal services available
to all users and of treating the waste of each user or class of users. The charges and assessments may include user charges,
connection fees, or any other methods of obtaining revenue from the disposal system available to the local government. In
establishing the charges and assessments, the local government shall take into account:


  (1) the volume, type, character, and quality of the waste of each user or class of users;


  (2) the techniques of treatment required;


  (3) any capital costs and debt retirement expenses of the disposal system required to be paid for from the charges and
  assessments;


  (4) the costs of operating and maintaining the system to comply with this chapter and the permits, rules, and orders of the
  commission; and


  (5) any other costs directly attributable to providing the waste disposal service under standard, accepted cost-accounting
  practices.


(c) A local government may apply to the commission for an exception from the requirements of Subsections (a) and (b) of
this section or for a modification of those requirements. The application shall contain the exception or modifications desired,
the reasons the exception or modifications are needed, and the grounds authorized in this subsection on which the commission



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
§ 26.176. Disposal System Rules, TX WATER § 26.176


should grant the application. A public hearing on the application shall be held in or near the territorial area of the local
government, and notice of the hearing shall be given to the local government. If after the hearing the commission in its judgment
determines that the volume, type, character, and quality of the waste of the users of the system or of a particular user or class of
users of the system do not warrant the enactment and enforcement of rules containing the requirements prescribed in Subsections
(a) and (b) of this section or that the enactment and enforcement of the rules would be impractical or unreasonably burdensome
on the local government in relation to the public benefit to be derived, then the commission in its discretion may enter an order
granting an exception to those requirements or modifying those requirements in any particular in response to circumstances
shown to exist.


(d) At any time and from time to time as circumstances may require, the commission may amend or revoke any order it enters
pursuant to Subsection (c) of this section. Before the commission amends or revokes such an order, a public hearing shall be
held in or near the territorial area of the local government in question, and notice of the hearing shall be given to the local
government. If after the hearing the commission in its judgment determines that the circumstances on which it based the order
have changed significantly or no longer exist, the commission may revoke the order or amend it in any particular in response
to the circumstances then shown to exist.


(e) In the event of any conflict between the provisions of this section and any other laws or parts of laws, the provisions of
this section shall control.


Credits
Added by Acts 1977, 65th Leg., p. 2207, ch. 870, § 1, eff. Sept. 1, 1977. Amended by Acts 1985, 69th Leg., ch. 795, § 1.105,
eff. Sept. 1, 1985.



Notes of Decisions (3)

V. T. C. A., Water Code § 26.176, TX WATER § 26.176
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
§ 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180




  Vernon's Texas Statutes and Codes Annotated
    Water Code (Refs & Annos)
      Title 2. Water Administration (Refs & Annos)
        Subtitle D. Water Quality Control
           Chapter 26. Water Quality Control (Refs & Annos)
              Subchapter E. Authority of Local Governments

                                                V.T.C.A., Water Code § 26.180

               § 26.180. Nonpoint Source Water Pollution Control Programs of Certain Municipalities

                                                          Currentness


(a) This section applies to a municipality to which Section 42.903, Local Government Code, applies.


(b) The municipality shall exercise the powers granted under state law to a municipality to adopt ordinances to control and
abate nonpoint source water pollution or to protect threatened or endangered species.


(c) The municipality by ordinance shall adopt a nonpoint source water pollution control and abatement program for
the municipality and its extraterritorial jurisdiction before the municipality adopts a resolution or ordinance creating an
extraterritorial jurisdiction under Section 42.903, Local Government Code. The municipality shall submit the ordinance creating
the program to the commission. Notwithstanding any other law requiring the adoption of an ordinance creating an extraterritorial
jurisdiction and approval by the commission, the ordinance creating the program becomes effective and is enforceable by the
municipality on the 90th day after the date the municipality submits the ordinance unless the ordinance is disapproved by the
commission during the 90-day period.


(d) If the commission disapproves a program submitted under Subsection (c) of this section, the commission shall make
recommendations to the municipality. The municipality shall adopt and incorporate the commission's recommendations in the
program.


(e) The nonpoint source water pollution controls of the municipality that had extraterritorial jurisdiction over an area before the
area was included in the extraterritorial jurisdiction of another municipality under Section 42.903, Local Government Code, are
effective during the 90-day period that the program is pending before the commission or until an amended program satisfactory
to the commission is adopted. The municipality, including the area in its extraterritorial jurisdiction under Section 42.903, Local
Government Code, shall enforce the controls during the 90-day period.


(f) If a nonpoint source water pollution control and abatement program is adopted by a river authority that has boundaries that
encompass the extraterritorial jurisdiction of the municipality, the standards under the program adopted by the municipality
must meet or exceed the standards under the program adopted by the river authority.


(g) The municipality may not grant a waiver to its nonpoint source water pollution control and abatement program unless
granting the waiver would demonstrably improve water quality.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              1
§ 26.180. Nonpoint Source Water Pollution Control Programs..., TX WATER § 26.180




Credits
Added by Acts 1991, 72nd Leg., ch. 16, § 13.01(b), eff. Aug. 26, 1991. Renumbered from V.T.C.A., Water Code § 26.178 by
Acts 1995, 74th Leg., ch. 76, § 17.01(52), eff. Sept. 1, 1995. Renumbered from V.T.C.A., Water Code § 26.179 by Acts 1997,
75th Leg., ch. 165, § 31.01(75), eff. Sept. 1, 1997.


V. T. C. A., Water Code § 26.180, TX WATER § 26.180
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session of the 84th Legislature

End of Document                                                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.




              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
NATIONAL FLOOD INSURANCE PROGRAM




    PROGRAM DESCRIPTION
                     August 1, 2002




        Federal Emergency Management Agency
     Federal Insurance and Mitigation Administration
NFIP Description                                                                   August 1, 2002



        National Flood Insurance Program
The U.S. Congress established the National Flood Insurance Program (NFIP) with the passage of
the National Flood Insurance Act of 1968. The NFIP is a Federal program enabling property
owners in participating communities to purchase insurance as a protection against flood losses in
exchange for State and community floodplain management regulations that reduce future flood
damages. Participation in the NFIP is based on an agreement between communities and the
Federal Government. If a community adopts and enforces a floodplain management ordinance to
reduce future flood risk to new construction in floodplains, the Federal Government will make
flood insurance available within the community as a financial protection against flood losses.
This insurance is designed to provide an insurance alternative to disaster assistance to reduce the
escalating costs of repairing damage to buildings and their contents caused by floods.

Purpose of this Document:
The purpose of this document is to provide a comprehensive description of the NFIP intended for
use by FEMA staff and NFIP constituents. It provides an overview and history of the Program
and covers all three aspects of the Program: 1) floodplain identification and mapping; 2)
floodplain management; and 3) flood insurance.

NFIP activities that are described in detail in this document include:

• How flood-prone areas are identified and mapped;
• FEMA’s map modernization initiative;
• The floodplain management requirements a community must adopt and enforce;
• FEMA’s community assistance and monitoring activities;
• How flood insurance is sold;
• What structures are eligible for flood insurance coverage and the amount of coverage available;
• How flood insurance policies are rated and claims are paid;
• The Community Rating System; and
• The Flood Mitigation Assistance program.

This document also includes a description of the Mandatory Purchase of Flood Insurance
Requirement and how this requirement relates to the NFIP. Finally, it includes a description of
other FEMA programs and activities that provide mitigation assistance and planning assistance
in reducing the Nation’s flood losses.

A list of acronyms used in this description is provided at the end of the document.
NFIP Description                                                                                                                      August 1, 2002


Federal Emergency Management Agency’s Mission............................................1

Overview of the NFIP ..............................................................................................1

Flood Hazard Identification and Risk Assessment...............................................4
   The “100-year” Standard .......................................................................................................................... 5
   Identifying and Mapping Flood-Prone Areas ........................................................................................... 5
   Flood Mapping Process ............................................................................................................................ 7
   Depiction of Levee Systems and Floodwall Systems on NFIP Maps ...................................................... 8
   Changes to the Flood Maps ...................................................................................................................... 9
   Mapping the Coastal Barrier Resource System or Otherwise Protected Areas ...................................... 10
   Map Modernization Program.................................................................................................................. 10
   Mapping Future Conditions.................................................................................................................... 12

Floodplain Management........................................................................................12
   Minimum NFIP Floodplain Management Requirements ....................................................................... 13
   Ordinance Adoption ............................................................................................................................... 16
   Monitoring Community Compliance...................................................................................................... 17
   Actions Against Communities For Failure to Enforce ........................................................................... 18
   Actions Against Individual Properties For Failure to Comply ............................................................... 19
   State Floodplain Management Role........................................................................................................ 20
   Post-Disaster Assessments ..................................................................................................................... 20
   Providing Technical Assistance.............................................................................................................. 21

Flood Insurance......................................................................................................22
   Sale of Flood Insurance .......................................................................................................................... 22
   Flood Insurance Policy ........................................................................................................................... 23
   Eligible Structures .................................................................................................................................. 23
   Coastal Barrier Resources System.......................................................................................................... 24
   Waiting Period........................................................................................................................................ 25
   Coverage Amounts ................................................................................................................................. 25
   Other Coverages ..................................................................................................................................... 26
   Ratemaking............................................................................................................................................. 26
   Claims..................................................................................................................................................... 27
   Marketing ............................................................................................................................................... 29

Mandatory Flood Insurance Purchase Requirement.........................................29
NFIP Description                                                                                                                 August 1, 2002


Other NFIP Activities ............................................................................................31
  Community Rating System..................................................................................................................... 31
  Flood Mitigation Assistance Program .................................................................................................... 33

Other FEMA Programs.........................................................................................34
  Hazard Mitigation Grant Program .......................................................................................................... 34
  Disaster Mitigation Act of 2000 ............................................................................................................. 35
  Planning Initiatives ................................................................................................................................. 36

A Key To The Acronyms Used In This Document .............................................37
NFIP Description                                                                    August 1, 2002


Federal Emergency Management Agency’s Mission
The Federal Emergency Management Agency (FEMA) is an independent Federal agency
reporting to the President. Founded in 1979, FEMA’s mission is to:
   Lead America to prepare for, prevent, respond to, and recover from disaster.
FEMA is responsible for coordinating the Federal response to floods, earthquakes, hurricanes,
and other natural or man-made disasters and providing disaster assistance to States, communities
and individuals. Disasters are declared by the President at the request of the Governor of the
impacted State if the impacts of the disaster exceed the ability of the State and the affected
communities to respond. For declared disasters, FEMA activates the Federal Response Plan with
27 signatory agencies. The Federal Response Plan provides a framework for the coordination of
assistance to States, communities, and individuals by Federal agencies.

The Federal Insurance and Mitigation Administration (FIMA) within FEMA is responsible for
administering the National Flood Insurance Program (NFIP) and administering programs that
provide assistance for mitigating future damages from natural hazards.

FEMA also provides training and technical assistance to governmental and non-governmental
entities in preparing for and responding to disasters and for protecting against future disasters
through mitigation. In addition to a headquarters office in Washington, D.C., FEMA has 10
regional offices.

Overview of the NFIP
Up until 1968, Federal actions related to flooding were primarily responses to significant events
that resulted in using structural measures to control flooding. Major riverine flood disasters of
the 1920’s and 1930’s led to considerable Federal involvement in protecting life and property
from flooding through the use of structural flood-control projects, such as dams and levees, with
the passage of the Flood Control Act of 1936. Generally, the only available financial recourse to
assist flood victims was in the form of disaster assistance. Despite the billions of dollars in
Federal investments in structural flood-control projects, the losses to life and property and the
amount of assistance to disaster victims from floods continued to increase.

As early as the 1950’s, when the feasibility of providing flood insurance was first proposed, it
became clear that private insurance companies could not profitably provide such coverage at an
affordable price, primarily because of the catastrophic nature of flooding and the inability to
develop an actuarial rate structure which could adequately reflect the risk to which flood-prone
properties are exposed. Congress proposed an experimental program designed to demonstrate
the feasibility of the private sector providing flood insurance by enacting the Federal Insurance
Act of 1956, but this Act was never implemented.

In recognition of increasing flood losses and disaster relief costs, major steps were taken in the
1960’s to redefine Federal policy and approaches to flood control. In 1965, Congress passed the
Southeast Hurricane Disaster Relief Act. The Act was as a result of the extensive damage


                                                 1
NFIP Description                                                                   August 1, 2002

caused by Hurricane Betsy in the Gulf States. The Act provided financial relief for the flooding
victims and authorized a feasibility study of a national flood insurance program. The resulting
report was entitled, “Insurance and Other Programs for Financial Assistance to Flood Victims”.
Shortly thereafter, the Bureau of the Budget Task Force on Federal Flood Control in 1966
advocated a broader perspective on flood control within the context of floodplain development in
House Document 465, “A Unified National Program for Managing Flood Losses”. House
Document 465 included five major goals:
•   Improve basic knowledge about flood hazards;
•   Coordinate and plan new developments in the floodplain;
•   Provide technical services;
•   Move toward a practical national program of flood insurance; and
•   Adjust Federal flood control policy to sound criteria and changing needs.
House Document 465 and the prior feasibility study provided the basis for the National Flood
Insurance Act of 1968. The primary purposes of the 1968 Act creating the NFIP are to:
•   Better indemnify individuals for flood losses through insurance;
•   Reduce future flood damages through State and community floodplain management
    regulations; and
•   Reduce Federal expenditures for disaster assistance and flood control.
Section 1315 of the 1968 Act is a key provision that prohibits FEMA from providing flood
insurance unless the community adopts and enforces floodplain management regulations that
meet or exceed the floodplain management criteria established in accordance with Section
1361(c) of the Act. These floodplain management criteria are contained in 44 Code of Federal
Regulations (CFR) Part 60, Criteria for Land Management and Use. The emphasis of the NFIP
floodplain management requirements is directed toward reducing threats to lives and the potential
for damages to property in flood-prone areas. Over 19,700 communities presently participate in
the NFIP. These include nearly all communities with significant flood hazards.

In addition to providing flood insurance and reducing flood damages through floodplain
management regulations, the NFIP identifies and maps the Nation’s floodplains. Mapping flood
hazards creates broad-based awareness of the flood hazards and provides the data needed for
floodplain management programs and to actuarially rate new construction for flood insurance.

When the NFIP was created, the U.S. Congress recognized that insurance for “existing
buildings” constructed before a community joined the Program would be prohibitively expensive
if the premiums were not subsidized by the Federal Government. Congress also recognized that
most of these flood-prone buildings were built by individuals who did not have sufficient
knowledge of the flood hazard to make informed decisions. Under the NFIP, “existing buildings”
are generally referred to as Pre-FIRM (Flood Insurance Rate Map) buildings. These buildings were
built before the flood risk was known and identified on the community’s FIRM. Currently about
26 percent of the 4.3 million NFIP policies in force are Pre-FIRM subsidized compared to 70
percent of the policies being subsidized in 1978.




                                                 2
NFIP Description                                                                    August 1, 2002

In exchange for the availability of subsidized insurance for existing buildings, communities are
required to protect new construction and substantially improved structures through adoption and
enforcement of community floodplain management ordinances. The 1968 Act requires that full
actuarial rates reflecting the complete flood risk be charged on all buildings constructed or
substantially improved on or after the effective date of the initial FIRM for the community or after
December 31, 1974, whichever is later. These buildings are generally referred to as “Post-FIRM”
buildings.

Early in the Program’s history, the Federal Government found that providing subsidized flood
insurance for existing buildings was not a sufficient incentive for communities to voluntarily join
the NFIP nor for individuals to purchase flood insurance. Tropical Storm Agnes in 1972, which
caused extensive riverine flooding along the east coast, proved that few property owners in
identified floodplains were insured. This storm cost the Nation more in disaster assistance than
any previous disaster. For the Nation as a whole, only a few thousand communities participated
in the NFIP and only 95,000 policies were in force.

As a result, Congress passed the Flood Disaster Protection Act of 1973. The 1973 Act prohibits
Federal agencies from providing financial assistance for acquisition or construction of buildings
and certain disaster assistance in the floodplains in any community that did not participate in the
NFIP by July 1,1975, or within 1 year of being identified as flood-prone.

Additionally, the 1973 Act required that Federal agencies and federally insured or regulated
lenders had to require flood insurance on all grants and loans for acquisition or construction of
buildings in designated Special Flood Hazard Areas (SFHAs) in communities that participate in
the NFIP. This requirement is referred to as the Mandatory Flood Insurance Purchase
Requirement. The SFHA is that land within the floodplain of a community subject to a 1 percent
or greater chance of flooding in any given year, commonly referred to as the 100-year flood.

The Mandatory Flood Insurance Purchase Requirement, in particular, resulted in a dramatic
increase in the number of communities that joined the NFIP in subsequent years. In 1973, just
over 2,200 communities participated in the NFIP. Within 4 years, approximately 15,000
communities had joined the Program. It also resulted in a dramatic increase in the number of
flood insurance policies in force. In 1977, approximately 1.2 million flood insurance policies
were in force, an increase of almost 900,000 over the number policies in force in December of
1973.

The authors of the original study of the NFIP thought that the passage of time, natural forces, and
more stringent floodplain management requirements and building codes would gradually
eliminate the number of Pre-FIRM structures. Nevertheless, modern construction techniques
have extended the useful life of these Pre-FIRM buildings beyond what was originally expected.
However, their numbers overall continue to decrease. The decrease in the number of Pre-FIRM
buildings has been attributed to a number of factors such as, severe floods in which buildings
were destroyed or substantially damaged, redevelopment, natural attrition, acquisition of flood
damaged structures, as well as flood control projects.




                                                 3
NFIP Description                                                                   August 1, 2002

In 1994, Congress amended the 1968 Act and the 1973 Act with the National Flood Insurance
Reform Act (NFIRA). The 1994 Act included measures, among others, to:

•   Increase compliance by mortgage lenders with the mandatory purchase requirement and
    improve coverage;
•   Increase the amount of flood insurance coverage that can be purchased;
•   Provide flood insurance coverage for the cost of complying with floodplain management
    regulations by individual property owners (Increased Cost of Compliance coverage);
•   Establish a Flood Mitigation Assistance grant program to assist States and communities to
    develop mitigation plans and implement measures to reduce future flood damages to
    structures;
•   Codify the NFIP’s Community Rating System; and
•   Require FEMA to assess its flood hazard map inventory at least once every 5 years.

Funding for the NFIP is through the National Flood Insurance Fund, which was established in
the Treasury by the 1968 Act. Premiums collected are deposited into the fund, and losses, and
operating and administrative costs are paid out of the fund. In addition, the Program has the
authority to borrow up to $1.5 billion from the Treasury, which must be repaid along with
interest. Until 1986, Federal salaries and program expenses, as well as the costs associated with
flood hazard mapping and floodplain management were paid by an annual appropriation from
Congress. From 1987 to 1990, Congress required the Program to pay these expenses out of
premium dollars. When expressed in current dollars, $485 million of policyholder premiums
were transferred to pay salary and other expenses of the Program. Beginning in 1991, a Federal
policy fee of $25 dollars, which was increased to $30 in 1995, is applied to most policies in order
to generate the funds for salaries, expenses, and mitigation costs.

The three basic components of the Program – identifying and mapping flood-prone communities,
the requirement that communities adopt and enforce floodplain management regulations, and the
provision of flood insurance – are described in detail below. Other aspects and components of
the Program, including the Mandatory Purchase Requirement, the Community Rating System
and the Flood Mitigation Assistance program, are also described.

Flood Hazard Identification and Risk Assessment
The Director of FEMA is required by statute to identify and map the Nation’s flood-prone areas
and to establish flood-risk zones in such areas. Flood hazard maps have been issued for over
19,200 communities at a cost of over $1.5 billion (actual dollars) [$2.8 billion in 2001 dollars].
To date, approximately 100,000 flood map panels have been produced depicting approximately
150,000 square miles of floodplain areas.

The FEMA flood hazard maps are used an estimated 15 million times annually for State and
community floodplain management regulations, for calculating flood insurance premiums, and
for determining whether property owners are required by law to obtain flood insurance as a
condition of obtaining mortgage loans or other Federal or federally related financial assistance.
FEMA’s flood hazard maps are also used by States and communities for emergency management



                                                 4
NFIP Description                                                                    August 1, 2002

and for land use and water resources planning and by Federal agencies implementing Executive
Order 11988, Floodplain Management for Federal actions proposed in or affecting floodplains.

The “100-year” Standard

The NFIP would not be able to offer insurance at affordable rates without the existence of risk
management (floodplain management) to reduce flood losses. In order to assess and manage the
flood risk, a national standard was needed. The U.S. Department of Housing and Urban
Development, which initially administered the NFIP before FEMA was created, began its
administration of the NFIP by calling on a group of experts to advise the agency as to the best
standard to be used as the basis for risk assessment, insurance rating, and floodplain management
for the Program. After extensive study and coordination with Federal and State agencies, this
group recommended the 1-percent-annual-chance flood (also referred to as the 100-year or “Base
Flood”) be used as the standard for the NFIP.

The 1-percent-annual-chance flood was chosen on the basis that it provides a higher level of
protection while not imposing overly stringent requirements or the burden of excessive costs on
property owners. The 1-percent-annual-chance flood (or 100-year flood) represents a magnitude
and frequency that has a statistical probability of being equaled or exceeded in any given year,
or, stated alternatively, the 100-year flood has a 26 percent (or 1 in 4) chance of occurring over
the life of a 30-year mortgage.

In 1973, the Senate Committee on Banking, Housing and Urban Affairs, which had oversight
responsibility for the NFIP, heard arguments on both sides on the appropriateness of the 100-
year base flood standard. The Committee concluded that the 1-percent-annual-chance flood was
reasonable and consistent with national objectives in reducing flood losses. In 1981, the Office
of Management and Budget (OMB) directed FEMA to review the use of the 1-percent-annual-
chance flood as part of the President’s 1981 Task Force on Regulatory Relief. In its report to
OMB, FEMA reaffirmed the overwhelming support for the Base Flood standard in responses
from the public and private sector.

The 1-percent-annual-chance flood is a regulatory standard used by Federal agencies, and most
States, to administer floodplain management programs. The 1-percent-annual-chance flood
standard has been used since the inception of the NFIP and is used for floodplain management
purposes in all of the 19,200 participating communities that have been issued flood hazard maps.

Identifying and Mapping Flood-Prone Areas

To meet the objective that studies be conducted to accurately assess the flood risk within each
flood-prone community, the 1968 Act called for: 1) the identification and publication of
information within five years for all floodplain areas that have special flood hazards; and 2) the
establishment of flood-risk zones in all such areas to be completed over a 15-year period
following passage of the Act.

When the NFIP was initially established, communities had to have been mapped and have flood-
risk zones established before they could participate in the Program. Within the first year of


                                                 5
NFIP Description                                                                  August 1, 2002

NFIP’s operation, it became evident that the time required to complete the detailed flood
insurance studies would markedly delay implementation of the Program in many flood-prone
communities. As a result, an interim means for more rapid community participation in the NFIP
had to be provided. The Housing and Urban Development Act of 1969 expanded participation
by authorizing an Emergency Program under which insurance coverage could be provided at
non-actuarial, federally subsidized rates in limited amounts during the period prior to completion
of a community’s Flood Insurance Study (FIS).

Until an FIS could be conducted, Flood Hazard Boundary Maps, which delineated the
boundaries of the community’s SFHAs, were prepared using approximate methods. These
methods identified on an approximate basis a 1-percent-annual-chance floodplain, but did not
include the determination of Base Flood Elevations (BFEs) (100-year flood elevations), flood
depths, or floodways. The Flood Hazard Boundary Map was intended to assist communities in
managing floodplain development, and to assist insurance agents and property owners in
identifying those areas where the purchase of flood insurance was advisable.

FISs that use detailed hydrologic and hydraulic analyses to develop BFEs and designate
floodways and risk zones for developed areas of the floodplain were subsequently produced for
most NFIP communities. Once more detailed risk data were provided to communities, the
community could enter the Regular Program whereby the community is required to adopt more
comprehensive floodplain management requirements and owners of structures could purchase
higher amounts of insurance.

In producing and updating FISs, FEMA typically uses a combination of two study approaches
(approximate and detailed) in identifying a community’s flood hazards. Detailed study methods
typically employ the use of engineering models and, at a minimum, result in the determination of
BFEs or flood depths and floodways that will be displayed on the FIRM. In general, the decision
whether to use the approximate method or detailed method is based on existing and anticipated
development in and near the floodplain. Flood hazard information for flooding sources that
affect developed or developing areas are based on detailed studies whenever possible;
approximate study methods, which are less rigorous than detailed methods and do not determine
BFEs or floodways, may be used for undeveloped or sparsely developed areas.

An FIS usually generates the following flood hazard information:

•   BFEs are presented as either water-surface elevations or average depths of flow above the
    ground surface. These elevations and depths are usually referenced to either the National
    Geodetic Vertical Datum of 1929 (NGVD29) or the North American Vertical Datum of 1988
    (NAVD88).
•   Water-surface elevations for the 10-year (10-percent-annual-chance), 50-year (2-percent-
    annual-chance), 100-year (1-percent-annual-chance), and 500-year (0.2-percent-annual-
    chance) floods.
•   Boundaries of the regulatory 100-year floodway. The regulatory floodway is defined as the
    channel of a stream plus any adjacent floodplain areas that must be kept free of
    encroachment so that the entire Base Flood (100-year flood) discharge can be conveyed with
    no greater than a 1.0-foot increase in the BFE.


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NFIP Description                                                                  August 1, 2002


•   The boundaries of the 100- and 500-year floodplains. The 100-year floodplain is referred to
    as the Special Flood Hazard Area (SFHA).

The results of the FIS are presented on a map, referred to as a Flood Insurance Rate Map
(FIRM), and presented in the FIS report in a narrative and graphically as flood profiles attached
to the narrative. FEMA determines the 1-percent-annual-chance flood, shown on the FIRMs as
A Zones or V Zones, from information that obtained through consultation with the community,
and from floodplain topographic surveys, detailed hydrologic and hydraulic analyses, and
historic records. FEMA uses commonly accepted computer models and engineering methods
that estimate hydrologic and hydraulic conditions to determine the 1-percent-annual-chance
flood, to determine BFEs, and to designate flood-risk zones.

FEMA defines technical requirements, product specifications for Flood Hazard Maps and related
NFIP products, and associated coordination and documentation activities in Guidelines and
Specifications for Flood Hazard Mapping Partners, dated February 2002. The Guidelines,
which are used to prepare FISs and restudies, provide information for the evaluation of riverine
and alluvial fan flood hazards, coastal flooding and flood-related erosion, and flood hazards
along the Great Lakes. The Guidelines also include procedures for conducting hydrologic and
hydraulic analyses of a flooding source or sources in order to establish BFEs. Also, included in
the Guidelines is information on process and products associated with the Cooperative Technical
Partners initiative, digital Flood Insurance Rate Map (DFIRM) specifications, and the option of
including a flood hazard zone reflecting future conditions on the FIRM when requested by the
community.

Along rivers, streams, and lakes within the United States, FEMA computes flood elevations
using computer models, statistical techniques, or both. These elevations are a function of the
amount of water expected to enter a particular system by means of precipitation and runoff. The
SFHAs in riverine areas are primarily identified as “A Zones” on the FIRM.

Along the coast, FEMA determines SFHAs by an analysis of storm surge, wind direction and
speed, wave heights, and other factors. FEMA designates these areas along the coast as both V
Zones and A Zones on the FIRM. V Zones are the more hazardous coastal flood zones because
they are subject to high velocity wave action. FEMA applies the V-Zone designation to those
areas along the coast where water depth and other conditions would support at least a 3-foot
wave height. FEMA also considers other factors in identifying V Zones, such as wave run-up.
FEMA usually designates A Zones in coastal areas landward of the V Zone. Coastal flood
hazards areas mapped as A Zones can be subject to storm surge and damaging waves; however,
the waves are less than 3 feet in height.

Flood Mapping Process

Over 10,000 communities have been provided detailed FISs and have been issued FIRMs that
include BFEs for Zones AE, A1-30, AH, AO, AR/AE, AR/A1-30, AR/AO, AR/AH, VE, and
V1-30. Most of these NFIP communities will have FIRMs that include a combination of SFHAs
that have been studied in detail with BFEs and floodway data and SFHAs that have been studied




                                                7
NFIP Description                                                                   August 1, 2002

using approximate methods which have been designated Zone A without BFEs or floodway
designations.

A draft FIS can be prepared by a study contractor to FEMA under the NFIP Regulations at 44
CFR Part 66 or by appellants under 44 CFR Part 65 for the purpose of establishing or revising
BFE and floodway data. FEMA reviews and modifies, as appropriate, the draft FIS to ensure it
complies with established NFIP criteria. Once FEMA has received and approved the draft FIS,
FEMA releases the information to the public as a Preliminary FIS and FIRM for review and
comment during a statutory 90-day appeal period before proposed elevations become effective.

During the appeal period, any owner or lessee of real property within the community where the
proposed elevation determination has been made may file a written appeal. The appeal must be
based on a demonstration that the elevations proposed by FEMA are scientifically and/or
technically incorrect. Until such time as the 90-day appeal period is completed and the
community is provided with a notice of final flood elevation determination, the BFE and
floodway data in the FIS are considered preliminary and subject to change. During the
preparation and review of the FIS and the appeals, FEMA coordinates closely with State and
local officials and presents its findings at public meetings.

Depiction of Levee Systems and Floodwall Systems on NFIP Maps

FEMA does not design, construct, fund, or approve levee systems or floodwall systems.
However, FEMA has developed stringent criteria that must be met before any system can be
depicted as providing protection from the 1-percent-annual-chance flood on a FIRM. Once the
criteria in the NFIP regulations have been met, FEMA will remove the property behind the levee
or floodwall from the 1-percent-annual-chance floodplain. FEMA’s review of a levee or
floodwall system is for the sole purpose of establishing appropriate risk-zone determinations for
NFIP maps and does not constitute a determination or warranty by FEMA as to how a structure
or system will perform in a flood event. Because of the potentially devastating effects to life and
property should a levee or floodwall fail or be overtopped, FEMA takes special care in
considering the impacts of such structures on flood hazards.

FEMA recognizes only a levee system or floodwall system that meets, and continues to meet,
minimum design standards that provide protection from the 1-percent-annual-chance flood.
Specifically, the criteria established in 44 CFR §65.10 must be satisfied before a levee may be
credited and mapped as providing protection from the 1-percent-annual-chance flood event. The
criteria include:

•   Design criteria, which address minimum freeboard above flood height, closure devices for
    any openings, embankment protection, embankment and foundation stability, settlement, and
    interior drainage. All data submitted to demonstrate compliance with these structural
    requirements must be certified by a registered professional engineer. In lieu of submitting
    these data, a Federal agency with responsibility for levee design may certify that the levee
    and/or levee system provides adequate protection against the 1-percent-annual-chance flood.




                                                 8
NFIP Description                                                                  August 1, 2002


•   Operations plan and criteria, which address operation of closures and interior drainage
    systems during a flood event. Operations for a levee system must be under the jurisdiction
    of a Federal or State agency, an agency created by Federal or State law, or an agency
    established by a community participating in the NFIP.

•   Maintenance plans and criteria require an officially adopted maintenance plan. At a
    minimum, the plan must specify the maintenance activities to be performed, the frequency of
    their performance, and the person responsible for their performance. All maintenance
    activities must be performed under the jurisdiction of a Federal or State agency, an agency
    created by a Federal or State law, or an agency of a community participating in the NFIP.

Changes to the Flood Maps

The flood risk information presented on the FIRM and in the FIS report forms the technical basis
for the administration of the NFIP. FEMA exercises great care to ensure that the analytical
methods employed in the FISs are scientifically and technically correct, that the engineering
standards followed meet professional standards, and, ultimately, that the results of the FIS are
accurate. Although the NFIP maps and FIS reports are prepared according to rigorous technical
standards, FEMA recognizes that changes to the maps and reports may be necessary. Some
reasons for the changes are due to improvements in the techniques used in assessing flood risks,
changes in physical conditions in the floodplains or watersheds, and the availability of new
scientific or technical data.

In addition, the limitations imposed by the scales at which the maps are prepared may result in
individual properties being inadvertently included in SFHAs. FEMA has developed a process,
referred to as a Letter of Map Amendment (LOMA), to correct these inadvertent inclusions. A
LOMA results from an administrative procedure that involves the review of technical data
submitted by the owner or lessee of property who believes the property has incorrectly been
included in a designated SFHA. A LOMA amends the currently effective FEMA map and
establishes that a specific property is not located in an SFHA, thereby removing the Mandatory
Flood Insurance Purchase Requirement.

FEMA has similarly established administrative procedures for changing effective maps based on
new or revised scientific or technical data that reflect other changes to the floodplain including
projects such as fill and flood control measures. The map actions are referred to as Letter of
Map Revision based on Fill (LOMR-F) and Letter of Map Revision (LOMR) respectively.

The NFIP regulations allow FEMA to revise and amend maps and FIS reports, as warranted, or
after it receives requests from community officials and individual property owners. To help
FEMA ensure that the maps and reports present information that accurately reflects existing
flood risks, the NFIP regulations require that each NFIP community inform FEMA of any
physical changes that affect BFEs in the community and, within 6 months of the date that such
data are available, submit those data that show the effects of the changes.

In making revisions and amendments, FEMA must adhere to the same engineering standards
applied in the preparation of the original NFIP maps and FIS reports. Therefore, when


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NFIP Description                                                                 August 1, 2002

requesting changes to NFIP maps and reports, community officials and property owners are
required to submit adequate supporting data. Those data enable FEMA to review and evaluate
the requests and to carry out its responsibility of ensuring that the flood-risk information
presented is scientifically and technically correct.

Because LOMAs, LOMR-Fs, and LOMRs officially amend or revise the flood maps, they must
reflect existing conditions, such as an “as-built” project. Communities, developers, and property
owners also frequently submit requests for proposed projects in floodplain areas to FEMA for
review and comment. Such requests typically include data and analyses of the pre- and post-
project conditions so that FEMA can ascertain the impact on flood hazards of the proposed
project. FEMA reviews such requests using the same data and engineering standards that are
used for “as-built” requests. FEMA’s response is provided in the form of a “conditional”
LOMA, LOMR-F, or LOMR, which state whether the proposed project, if built as proposed,
would justify a map revision. A conditional LOMA, LOMR-F, or LOMR does not constitute a
building permit; the authority to approve projects and issue building permits lies with the local
community and, in some instances, State agencies.

Mapping the Coastal Barrier Resource System or Otherwise Protected Areas

Congress passed the Coastal Barrier Resources Act in 1982 and the Coastal Barrier Improvement
Act in 1990, defining and establishing a system of protected coastal areas (including the Great
Lakes) and Otherwise Protected Areas (OPAs) known as the Coastal Barrier Resources System
(CBRS). The Acts provide protection to CBRS areas by prohibiting most expenditures of
Federal funds in CBRS areas, including the sale of flood insurance for buildings constructed or
substantially improved after the effective date of the CBRS area. These prohibitions refer to
"any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or any other form of
direct or indirect Federal assistance," with specific and limited exceptions.

Congress designated the initial CBRS areas in 1982 and is the only entity that may authorize a
revision to CBRS boundaries. Revisions to CBRSs are typically authorized by Congress based
on State and local requests as well as recommendations made by the U.S. Fish and Wildlife
Service. Because of the prohibition on the sale of flood insurance for buildings constructed or
substantially improved after the CBRS effective date, it is critical to depict these areas on
FIRMs. Thus, FEMA, in cooperation with the U.S. Fish and Wildlife Service, transfers the
boundaries from Congressionally-adopted source maps, titled “Coastal Barrier Resource
System,” to FIRMs so that insurance agents will not inadvertently sell flood insurance policies
for buildings not eligible for the purchase of flood insurance.

Map Modernization Program

Nationwide, approximately 75 percent of the FEMA flood maps are more than 10 years old.
Because flood hazards are dynamic and usually increase over time as development occurs, old
maps tend to understate actual, existing flood hazards. Additionally, most of the maps were
produced using now antiquated manual cartographic techniques. The primary reason for the
existing backlog of outdated maps has been inadequate program funding over the past 20 years.




                                               10
NFIP Description                                                                 August 1, 2002

As a result, in 1997, FEMA designed a plan to modernize the FEMA flood-mapping program.
With implementation of the modernization plan, the flood hazard information provided to
communities would be more accurate and extensive, resulting in safer communities. The plan
proposes a 7-year upgrade to the flood map inventory and an enhancement of products, services,
and process that entails:

•   Converting Level-1 Flood Map Upgrades that entail converting the maps to a digital format
    for approximately 11,140 communities (55,700 map panels)—this includes resolving
    community-identified map maintenance needs for 16,500 map panels; upgrading existing
    digitally produced 20,700 map panels to the new digital FIRM specifications; and when
    feasible, cost-effectively enhancing the flood theme (e.g., redelineation of floodplain
    boundaries on updated topography or limited detailed studies to update approximate flood
    zones).
•   Conducting Level-2 Flood Map Upgrades that entail all of the features of Level 1 Flood Map
    Upgrades plus incorporating updated detailed flood data through studies and restudies for
    approximately 4,700 communities with inadequate floodplain mapping (23,540 map panels);
•   Flood map creations for approximately 2,700 flood-prone communities without flood maps
    (13,700 map panels);
•   Integrating communities, States, and regional agencies into the mapping process through the
    Cooperating Technical Partners (CTP) initiative;
•   Converting the maps to metric, as required by Executive Order 12770, and to the North
    American Vertical Datum of 1988; and
•   Improving customer service to make the maps easier to obtain and use, including electronic
    and digital printing and distribution.

Over the proposed 7-year modernization period, the entire flood map inventory would be
converted to a digital format. Additionally, approximately 13,700 new digital map panels would
be created for flood-prone communities that do not currently have flood maps.

As a cornerstone of the plan, FEMA continues to fully integrate communities, States, and
regional agencies in the flood mapping process through the Cooperating Technical Partners
(CTP) program. To date, more than 115 partners have joined the CTP program, which includes
two large remapping efforts for the States of New York and North Carolina. The program
initiated for the State of North Carolina is the first statewide flood mapping initiative and
includes 16 other Federal agencies. The CTP initiative allows partnering entities to perform all
or portions of data collection and mapping tasks. Cooperating Technical Partners can use the
Guidelines and Specifications for Flood Hazard Mapping Partners in performing supporting
technical analyses and preparation of flood hazard maps.

To date, funding to implement the map modernization plan has not been made available.




                                               11
NFIP Description                                                                  August 1, 2002


Mapping Future Conditions

Historically, flood hazard information presented on NFIP flood maps has been based on the
existing conditions of the floodplain and watershed. The primary reason is that future land-use
development, such as urban growth, is uncertain and difficult to predict and has not, therefore,
been considered in FISs.

In recent years, a number of communities that are experiencing urban growth have expressed
interest in using hydrology based on future conditions to regulate floodplain development.
FEMA conducted an extensive evaluation to determine whether future conditions flood hazard
information could and should be placed on FIRMs and in the accompanying FIS. On November
27, 2001, FEMA issued a final rule that allows for floodplains that reflect future conditions
hydrology to be shown on the FIRM at the request of the community.

The future conditions flood hazard information will be provided for informational purposes only
and it is up to the community to decide whether to use the information to regulate floodplain
development. When future conditions floodplains are included on the FIRM, both the existing
conditions floodplain and the future conditions floodplain will be shown. The existing
conditions data will continue to be used to establish flood insurance rates and to determine if
flood insurance is required. The new procedure will allow FEMA to maintain national standards
while at the same time providing additional information for use by the community.

Floodplain Management
Section 1315 of the 1968 Act prohibits FEMA from providing flood insurance to property
owners unless the community adopts and enforces floodplain management criteria established
under the authority of Section 1361(c) of the Act. These criteria are established in the NFIP
regulations at 44 CFR §60.3. The community must adopt a floodplain management ordinance
that meets or exceeds the minimum NFIP criteria. Under the NFIP, “community” is defined as:

    “any State, or area or political subdivision thereof, or any Indian tribe or authorized
   tribal organization, or Alaska Native village or authorized native organization, which
   has authority to adopt and enforce floodplain management regulations for the areas
   within its jurisdiction.”

The Program has served as an important impetus for the establishment of floodplain management
programs nationwide in the approximately 19,700 participating communities and most States and
territories. Community participation in the NFIP is voluntary. Prior to the creation of the NFIP,
floodplain management as a practice was not well established – only a few States and several
hundred communities actually regulated floodplain development. For many communities, the
NFIP was the community’s initial exposure to land use planning and community regulations.
The power to regulate development in the floodplain, including requiring and approving permits,
inspecting property, and citing violations, is granted to communities under a State’s police
powers. FEMA has no direct involvement in the administration of local floodplain management
ordinances. Since the Federal Government does not have land use authority, the NFIP is based



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NFIP Description                                                                  August 1, 2002

on the Federal government’s power to spend under the Constitution rather than any Federal
authority to regulate land use.

Minimum NFIP Floodplain Management Requirements

Under the NFIP, the minimum floodplain management requirements that a community must
adopt depends on the type of flood risk data (detailed FIS and FIRMs with BFEs or approximate
A Zones and V Zones without BFEs) that the community has been provided by FEMA. Under
the NFIP regulations, participating NFIP communities are required to regulate all development in
SFHAs. “Development” is defined as:

    “any man-made change to improved or unimproved real estate, including but not limited to
    buildings or other structures, mining, dredging, filling, grading, paving, excavation or
    drilling operations or storage of equipment or materials.”

Before a property owner can undertake any development in the SFHA, a permit must be obtained
from the community. The community is responsible for reviewing the proposed development to
ensure that it complies with the community’s floodplain management ordinance. Communities are
also required to review proposed development in SFHAs to ensure that all necessary permits
have been received from those governmental agencies from which approval is required by
Federal or State law, such as 404 wetland permits from the Army Corps of Engineers or permits
under the Endangered Species Act.

Under the NFIP, communities must review subdivision proposals and other proposed new
development, including manufactured home parks or subdivisions to ensure that these development
proposals are reasonably safe from flooding and that utilities and facilities servicing these
subdivisions or other development are constructed to minimize or eliminate flood damage.

In general, the NFIP minimum floodplain management regulations require that new construction or
substantially improved or substantially damaged existing buildings in A Zones must have their
lowest floor (including basement) elevated to or above the Base Flood Elevation (BFE). Non-
residential structures in A Zones can be either elevated or dry-floodproofed. In V Zones, the
building must be elevated on piles and columns and the bottom of the lowest horizontal structural
member of the lowest floor of all new construction or substantially improved existing buildings
must be elevated to or above the BFE. The minimum floodplain management requirements are
further described below:

For all new and substantially improved buildings in A Zones:

•   All new construction and substantial improvements of residential buildings must have the
    lowest floor (including basement) elevated to or above the BFE.

•   All new construction and substantial improvements of non-residential buildings must either
    have the lowest floor (including basement) elevated to or above the BFE or dry-floodproofed
    to the BFE. Dry floodproofing means that the building must be designed and constructed to be
    watertight, substantially impermeable to floodwaters.


                                               13
NFIP Description                                                                    August 1, 2002


•   Buildings can be elevated to or above the BFE using fill, or they can be elevated on extended
    foundation walls or other enclosure walls, on piles, or on columns.
•   Because extended foundation or other enclosure walls will be exposed to flood forces, they
    must be designed and constructed to withstand hydrostatic pressure otherwise the walls can
    fail and the building can be damaged. The NFIP regulations require that foundation and
    enclosure walls that are subject to the 100-year flood be constructed with flood-resistant
    materials and contain openings that will permit the automatic entry and exit of floodwaters.
    These openings allow floodwaters to reach equal levels on both sides of the walls and
    thereby lessen the potential for damage. Any enclosed area below the BFE can only be used
    for the parking of vehicles, building access, or storage.

In addition, to the above requirements, communities are required to select and adopt a regulatory
floodway in riverine A Zones. The area chosen for the regulatory floodway must be designed to
carry the waters of the 1-percent-annual-chance flood without increasing the water surface
elevation of that flood more than one foot at any point. Once the floodway is designated, the
community must prohibit development within that floodway which would cause any increase in
flood heights. The floodway generally includes the river channel and adjacent floodplain areas
that often contain forests and wetlands, an area estimated at 5.8 million acres (or over 9,000
square miles) on the FIRMs. This requirement has the effect of limiting development in the most
hazardous and environmentally sensitive part of the floodplain.

For all new and substantially improved buildings in V Zones:

•   All new construction and substantial improvements of buildings must be elevated on piles
    and columns so that the bottom of the lowest horizontal structural member of the lowest floor
    is elevated to or above the BFE. No fill can be used for structural support.

•   All new construction and substantial improvements of buildings must be properly anchored
    to resist flotation, collapse, and lateral movement.

•   In V Zones, the velocity water and wave action associated with coastal flooding can exert
    strong hydrodynamic forces on any obstruction to the flow of water. Standard foundations
    such as solid masonry walls or wood-frame walls will obstruct flow and be at risk to damage
    from high-velocity flood forces. In addition, solid foundation walls can direct coastal
    floodwaters into the elevated portion of the building or into adjacent buildings. The result
    can be structural failure of the building. For these reasons, the area below the lowest floor of
    the elevated building in V Zones must either be free of obstruction, or any enclosure must be
    constructed with open wood lattice-panels or insect screening or, be constructed with non-
    supporting/non-load bearing breakaway walls which meet applicable NFIP criteria. Any
    enclosed area below the BFE can only be used for the parking of vehicles, building access, or
    storage.

•   In order to further protect structures from damaging wave impacts, structures must be located
    landward of the reach of mean high tide. Furthermore, man-made alteration of sand dunes
    and mangrove stands, which would increase potential flood damage, are prohibited within V
    Zones.


                                                14
NFIP Description                                                                      August 1, 2002

In responding to the public’s desire to have an enclosed area below an elevated building, but
recognizing the potential risks to lives and property, the NFIP floodplain management
regulations permit certain limited uses of enclosures below the lowest floor in A Zones or V
Zones. Under the NFIP, the enclosed area below an elevated building in an A Zone or V Zone
can only be used for the parking of vehicles, building access, or storage. The allowance of these
uses below the BFE is permitted because the amount of damage caused by flooding to these
areas can easily be kept to a minimum by following the performance standards for the design and
construction of enclosures in A Zones and V Zones described above and by using flood-resistant
building materials. To further minimize flood damages, mechanical, electrical, plumbing
equipment, and other service facilities must be designed and/or located above the BFE so as to
prevent damage during conditions of flooding.

The Program has led to a large reduction in potential average annual flood damages for new
construction (Post-FIRM structures). The NFIP’s loss experience indicates that $1 billion in flood
damages are avoided each year as a result of the NFIP floodplain management regulations for new
construction. Structures built to NFIP criteria experience 80 percent less damage through reduced
frequency and severity of losses.

On the other hand, there is still significant flood damage potential for existing flood-prone buildings
(Pre-FIRM structures). According to estimates developed in a 1997 study, there are 6.6 million
structures located in SFHAs identified on the FIRMs. These 6.6 million structures include 6.2
million residential structures (representing about 8 million housing units) and 0.4 million non-
residential structures. Of the 6.6 million structures, 4.3 million Pre-FIRM structures were built prior
to the issuance of a community’s FIRM and the adoption of floodplain management regulations.
The problem is not with the total universe of Pre-FIRM buildings. The 4.3 million Pre-FIRM
structures have varying degrees of flood risk with just over half of these structures estimated to have
their lowest floor below the BFE. Of those Pre-FIRM structures that have their lowest floor below
the BFE, a smaller group of Pre-FIRM structures have their lowest floor well below the BFE and
are subject to the severest risk.

The NFIP substantial improvement requirement and substantial damage requirement provides a
mechanism to ensure that a significant increase in investment in existing Pre-FIRM buildings will
receive needed protection from the flood risk. If a community determines that the cost of
improvements to a home or business equals or exceeds 50% of the market value of the building, the
building is considered a “substantial improvement”. If a community determines that the cost of
restoring a home or business equals or exceeds 50 of the market value of the building before the
damage from any origin occurred, the building is considered "substantially damaged". A
substantially improved building or substantially damaged building must meet the minimum
requirements of the NFIP. It is the community’s responsibility to make substantial improvement or
substantial damage determinations

The substantial damage requirement of the NFIP has been difficult for some communities to
enforce. One of the primary reasons for this has been that local officials find it difficult to enforce
the requirement on property owners who do not have the financial resources to both repair and bring
the buildings into compliance. In the last ten years, financial resources to mitigate substantially
damaged buildings have improved. With passage of the National Flood Insurance Reform Act of



                                                  15
NFIP Description                                                                      August 1, 2002

1994, activities that support reducing future damages to existing flood-prone buildings that have
been substantially damaged now include: Increased Cost of Compliance coverage and the Flood
Mitigation Assistance (FMA) program.

In addition, FEMA’s Hazard Mitigation Grant Program (HMGP) under Section 404 of the Robert T.
Stafford Disaster Relief and Emergency Relief Act of 1988, as amended, also provides considerable
resources in reducing or eliminating future flood damages to existing structures after a flood
disaster. The Disaster Mitigation Act of 2000, which amended the Stafford Act, will provide
additional resources for mitigation projects and planning. These activities are further described
under “Other NFIP Activities” below. FEMA’s resources combined with resources from other
Federal agencies, such as the Department of Housing and Urban Development and the Small
Business Administration, have improved the level of compliance with the substantial damage
requirement by providing property owners with the financial help they need to meet Program
requirements.

A number of the existing Pre-FIRM structures experience repeat flood damages and represent a
significant problem for the Program. NFIP Repetitive Loss Properties have been generally defined
as those that have had at least two losses of $1,000 or more within any 10-year period. Currently
there are about 45,000 insured repetitive loss structures in the country. These buildings represent a
serious drain on the National Flood Insurance Fund and have accounted for nearly one-third of all
paid losses. The NFIP Regulations do not include specific criteria to address repetitively damaged
structures similar to the substantial damage requirement. However, FEMA has developed a
Repetitive Loss Strategy to identify properties throughout the country that are most at risk for repeat
flooding, and to reduce their exposure through targeted buyouts, relocation, and elevation. The
strategy targets a subset of Repetitive Loss Properties that includes currently insured properties that
have 2 or 3 losses where the cumulative flood insurance claim payments are greater than the
building value or those properties that have had 4 or more losses. These represent around 10,000
buildings. FEMA’s mitigation programs are being focused on these buildings, which will result in
significant reductions in NFIP claims and overall flood damages as they are mitigated.

Ordinance Adoption

Once FEMA provides a community with the flood hazard information upon which floodplain
management regulations are based, the community is required to adopt a floodplain management
ordinance that meets or exceeds the minimum NFIP requirements. FEMA can suspend
communities from the Program for failure to adopt once the community is notified of being
flood-prone or for failure to maintain a floodplain management ordinance that meets or exceeds
the minimum requirements of the NFIP. The procedures for suspending a community from the
Program for failure to adopt or maintain a floodplain management ordinance that meets or
exceeds the minimum requirements of the NFIP are established in the NFIP regulations at 44
CFR §59.24(a) and (d).

Since 1968, just over 2,300 communities have been suspended for failure to adopt. Most of
these communities subsequently adopted a compliant ordinance and were eventually reinstated
into the Program. A community either has or does not have a compliant ordinance. There are
currently 261 communities suspended from the Program for failure to adopt floodplain



                                                  16
NFIP Description                                                                   August 1, 2002

management regulations that meet or exceed the minimum NFIP requirements. These are
generally small communities with little or no floodplain development.

In these suspended communities, flood insurance is not available to property owners. In
addition, these communities are subject to limitations on Federal financial assistance in Section
202(a) of 1973 Act which prohibits Federal officers or agencies from approving any form of
loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster assistance loan or grant, for
acquisition or construction purposes within SFHAs. For example, this would prohibit mortgage
loans guaranteed by the Department of Veterans Affairs, insured by the Federal Housing
Administration, or secured by the Rural Economic and Community Development Services. In
the case of disaster assistance under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act of 1988, as amended, this prohibition only applies to assistance in connection
with a flood.

Furthermore, Section 202(b) of the 1973 Act requires federally regulated lending institutions to
notify the purchaser or lessee of improved real property situated in a SFHA whether Federal
disaster assistance will be available when such property is being used to secure a loan that is
being made, increased, extended or renewed.

Monitoring Community Compliance

FEMA monitors communities to ensure that they have adopted an ordinance that meets or
exceeds the minimum NFIP floodplain management criteria and to ensure that they are
effectively enforcing their ordinance. While the NFIP floodplain management criteria are
administered by States and communities through their floodplain management regulations,
FEMA’s role is to provide technical assistance and to monitor communities for compliance with
the minimum NFIP criteria. If communities do not adequately enforce their floodplain
management regulations, they can be placed on probation and potentially suspended from the
Program following probation.

FEMA or States on behalf of FEMA conduct Community Assistance Visits (CAVs) and
Community Assistance Contacts (CACs) to monitor community floodplain management
programs. A CAV is a scheduled visit to an NFIP community for the purpose of conducting a
comprehensive assessment of the community’s floodplain management program. The CAV is
also used as an opportunity to provide technical assistance to the community. A CAV typically
involves a tour of the floodplain, a meeting with local floodplain management officials, and an
examination of the community’s floodplain development permit and variance files. The visit is
documented in a follow-up letter to the community. If any issues are identified during the CAV,
such as a possible floodplain violation or program deficiency, these issues are also addressed in
the follow-up letter. The community is responsible for resolving any program deficiencies or
remedying any violations identified.

A CAC is used to establish a contact with a community for the purpose of determining if any
problems or issues exist and to offer the community assistance if necessary. CACs can be
conducted by means of a telephone call or brief visit. While CACs are a less comprehensive
assessment of a community’s floodplain management program, sufficient information about the



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NFIP Description                                                                    August 1, 2002

community’s floodplain management program can be obtained in order to determine whether
there are more serious floodplain management problems in the community.

Several thousand local officials are contacted annually through CAVs, CACs, and other activities
such as workshops and formal floodplain management courses. Also, a number of local officials
directly contact State or FEMA regional staff for technical assistance. Because of resource
limitations in conducting CAVs and CACs in any given year, FEMA has established criteria in
prioritizing which communities will be visited or contacted. Basically, a CAV should be
conducted in communities with known or suspected program deficiencies or potential violations
or communities experiencing development in the floodplain. CACs are not conducted in
communities where more serious floodplain problems or issues are known or suspected. CACs
are generally used as a screening tool for determining whether a community should receive the
level of attention of a CAV. Together, they provide FEMA with an effective means of
monitoring participating communities and providing technical assistance.

FEMA staff can also monitor enforcement by communities through applications for flood
insurance policies, which often identify buildings that are potentially in violation of the NFIP
minimum floodplain management requirements. In addition, FEMA can monitor enforcement by
communities through the LOMR (Letter of Map Revision) process. Requests through the LOMR
process to remove land from the floodplain designation based on fill may indicate that floodplain
areas have been improperly filled such as in a floodway or in a coastal V Zone or that a building has
its lowest floor below the BFE. The respective FEMA regional office will follow-up with the
community to determine whether the building or floodplain development is in compliance with the
community’s floodplain management regulations and may conduct a CAV if warranted.

Actions Against Communities For Failure to Enforce

Most deficiencies in a community’s floodplain management program or violations of local
ordinances are generally due to lack of understanding of the NFIP requirements, lack of technical
skills, failure to understand the rationales behind the NFIP requirements, or lack of an
appreciation of the insurance implications and other consequences of a decision. Most problems
that are identified can be solved through community assistance efforts. When this does not
happen, FEMA has procedures in place to conduct an enforcement action in order to obtain
compliance by the community. If a community does not adequately enforce its floodplain
management regulations, it can be placed on probation or suspended from the Program.

Following a CAV, the community must be given reasonable time to demonstrate buildings are
compliant with the ordinance or it must correct any program deficiencies and remedy any
violations identified during the visit. This affords the community the appropriate due process. It
also makes placing a community on probation, if necessary, and potentially suspending a
community legally defensible. As long as a community is making adequate progress toward
correcting program deficiencies and remedying violations, FEMA will not initiate formal
probation. It is important that the community work toward resolving its problems to ensure that
future flood damages and potential loss of life are mitigated. FEMA, however, will initiate
probation in a community that does not make sufficient progress in resolving its floodplain
management issues or chooses not to address them. The procedures for placing a community on



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NFIP Description                                                                    August 1, 2002

probation or suspending a community from the Program are established in the NFIP regulations
at 44 CFR §59.24(b) and (c).

When it becomes necessary to initiate probation, FEMA notifies the community that it will be
placed on probation upon 120 days if the community does not demonstrate it has corrected its
program deficiencies and has remedied violations to the maximum extent possible. While
probation has no effect on the availability of flood insurance, an additional charge of $50 is
added to the premium for each policy for a period of at least one year. A 120-day notice is
provided to the community so that FEMA can then give policyholders adequate notification of
the impending probation and the additional premium that will be charged. According to the
NFIP regulations, FEMA must provide policyholders a notice at least 90 days before the
probation is to begin. During the 120-day period, the community has the opportunity to avoid
probation by demonstrating compliance with the NFIP requirements.

When a community is placed on probation, FEMA sends a letter to the community establishing
new compliance deadlines. If the community fails to take remedial measures during the period
of probation, the community may be suspended from the NFIP. When a community is
suspended from the NFIP, flood insurance is no longer available. Also, the community is subject
to limitations on Federal financial assistance described above under Ordinance Adoption.

As of July 23, 2002, there are 7 communities currently on probation nationwide. Since 1986,
107 communities have been sent a formal notice that they will be placed on probation if they do
not address the program deficiencies or violations identified. Out of the 107 communities, 51
have actually been placed on probation. The remaining communities satisfactorily resolved their
program deficiencies and violations before being placed on probation. Nine communities were
eventually suspended from the Program for failure to enforce the community’s floodplain
management ordinance and 4 of those communities are currently suspended for noncompliance.
The 5 remaining communities corrected their deficiencies and were reinstated into the NFIP.

Most communities comply with NFIP requirements prior to FEMA’s issuing a probation notice.
Communities often recognize that it is in everyone’s best interest to bring the community into
compliance before probation or suspension occurs. One of the primary reasons communities
comply is to avoid disruptions in the real estate market that would result with the potential loss
of flood insurance.

FEMA must follow its procedures for placing communities on probation or suspending
communities from the Program to ensure that adequate notifications and due process are
provided.

Actions Against Individual Properties For Failure to Comply

There are certain options that can be applied to individual structures that are determined to be in
violation of the community’s floodplain management ordinance. If an insured structure is identified
as a violation of the community’s floodplain management ordinance, FEMA can have the insurance
company that insures the building review the information and possibly rerate the structure to reflect




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NFIP Description                                                                        August 1, 2002

the increased risk to the structure. This can result in significantly higher flood insurance rates on the
structure, which may cause the property owner to bring the building into compliance.

In addition, Section 1316 of the 1968 Act provides for the denial of flood insurance coverage for
any property which the Administrator of the FIMA finds has been declared by a duly constituted
State or community to be in violation of State or community floodplain management regulations.
Section 1316 can only be implemented in instances when an appropriate authority in the State or
community submits a declaration to the Administrator of the FIMA specifically stating that the
structure is a violation. Currently, there are over 500 structures that have been denied flood
insurance coverage under Section 1316.

State Floodplain Management Role

States also have a role in the NFIP and many have established State floodplain management
programs. Each State has designated an NFIP State Coordinating Agency as a point of contact
for the NFIP. Generally, the State Coordinating Agency is the State environmental or natural
resources agency or the State emergency management agency. Most States provide technical
assistance to communities using FEMA funding under the Community Assistance Program
(CAP) – State Support Services Element, their own funding, or a combination of the two. CAP
was developed in recognition that there were not sufficient FEMA staff resources to provide
technical assistance to or monitor compliance with all the participating NFIP communities
(currently 19,700) and that other resources would have to be used.

Many States have adopted floodplain management statutes and regulations and have established
and funded their own floodplain management programs. States must also have floodplain
management regulations or executive orders in place that meet the minimum requirements of the
NFIP for State-owned properties in SFHAs. Where a State requires that communities adopt
more restrictive requirements than the NFIP minimum requirements, such as a more restrictive
floodway or additional freeboard (requiring new construction to be elevated to a level 1 or more
feet higher than the BFE), the State requirements take precedence over the NFIP minimum.

Post-Disaster Assessments

The Federal Insurance and Mitigation Administration (FIMA) and the FEMA Regional Offices
conduct field investigations following major flood disasters to evaluate how well the NFIP
floodplain management requirements performed. During these investigations, a team of experts
inspect disaster-induced damages to residential and commercial buildings and other structures
and infrastructure; conduct forensic engineering analyses to determine causes of structural and
building component failures and successes; and evaluate local design practices, construction
methods and materials, building codes, and building inspection and code enforcement processes.
In addition, the teams make recommendations of actions that State and local governments, the
construction industry, building code organizations, and individual property owners can take to
reduce future damages and to protect lives and property in flood hazard areas.

Lessons learned by analyzing these building performance findings are also used by FIMA to
fine-tune and improve NFIP Floodplain Management Regulations related to building


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NFIP Description                                                                August 1, 2002

performance, designs, methods, and materials and to develop technical guidance. These
assessments are documented by FIMA in Flood Damage Assessment Reports and Building
Performance Assessment Team (BPAT) reports. The information and findings in these reports
are distributed widely using a variety of methods including technical manuals, workshops, and
the Internet, and through formal training courses.

Providing Technical Assistance

In addition to technical assistance provided to communities as part of a CAV or CAC, FEMA
staff provides technical and planning assistance through workshops and other contacts with
community officials, property owners, builders and developers, architects and engineers,
surveyors, lenders, and other NFIP constituents. Following major flood disasters, FEMA staff
work closely with communities in providing technical assistance on the NFIP floodplain
management requirements, particularly the substantial damage requirement, and on developing a
reconstruction strategy for property impacted by floods to determine appropriate mitigation
measures, such as elevation, acquisition, or relocation of flood-damaged structures.

FEMA conducts extensive training of local and State officials responsible for administering
floodplain management programs. FEMA conducts a weeklong Resident Floodplain
Management Course at FEMA’s Emergency Management Institute (EMI) several times a year.
Through this course, FEMA has trained over 1,000 State and local floodplain management
officials. An Independent Study Floodplain Management Course is also offered through EMI.
FEMA also offers Resident Courses at EMI on mitigation, including a course on retrofitting
flood-prone residential structures and a course on coastal construction. The FEMA regional
offices and States deliver field-deployed versions of the EMI Floodplain Management Course as
well as conduct throughout the year a number of floodplain management workshops that they
develop.

Extensive publications have been produced on the NFIP, including mitigation measures that can
be undertaken to minimize or eliminate future flood damages. Examples of these publications
include:

•   Homeowner’s Guide to Retrofitting: Six Ways to Protect Your House from Flooding
•   Answers to Questions about Substantially Damaged Buildings
•   Guidance for State and Local Officials on Increased Cost of Compliance Coverage
•   Managing Floodplain Development in Approximate Zone A Areas
•   Coastal Construction Manual
•   Floodplain Management Bulletin 1-98 Use of Flood Insurance Study (FIA) Data as
    Available Data
•   Technical Bulletin series on NFIP building criteria, such as TB 1-93, Openings in
    Foundation Wall and TB 2-93 Flood-Resistant Materials Requirements. (Note: there are
    currently 11 Technical Bulletins published.)

A complete list of publications can be found on FEMA’s website at www.FEMA.gov.




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NFIP Description                                                                    August 1, 2002

FEMA and the American Planning Association (APA) jointly developed a publication entitled
Subdivision Design in Flood Hazard Areas that encourages use of innovative planning tools to
limit development in the floodplain. This document was published in 1997 as part of their
Planning Advisory Service series in an effort to use APA’s distribution system to reach out to the
planning community.

FEMA also promotes and coordinates governmental and non-governmental floodplain
management activities and is a consulting agency to other Federal agencies on issues relating to
implementation of Executive Order (E.O.) 11988, Floodplain Management. E.O. 11988
establishes a decision-making process for Federal agencies to avoid the long- and short-term
adverse impacts on floodplains unless no practicable alternatives exist. If there is no practicable
alternative, the Federal agency must mitigate to ensure that the action minimizes any loss of life
and property and loss of natural and beneficial values.

Flood Insurance
Section 1304 of the 1968 Act authorizes the Director of FEMA to establish and carry out “a
national flood insurance program which will enable interested persons to purchase insurance
against loss resulting from physical damage to or loss of real property or personal property”
resulting from flood. Flood insurance provides the mechanism by which floodplain occupants
are compensated for flood damages. Flood insurance also provides a way for some of the
financial burden of flood losses to be removed from taxpayers, such as for Federal disaster
assistance and casualty loss deductions under Federal income taxes.

The number of policies in force in the United States has increased from about 95,000 before the
Flood Disaster Protection Act of 1973, to 2.2 million in 1989, to over 4.3 million currently. Any
property owner of insurable property may purchase flood insurance coverage, provided that the
community in which the property is located is participating in the NFIP. The amount of flood
insurance coverage in force as of March 31, 2002 is over $606 billion.

The National Flood Insurance Fund (NFIF) is the instrument through which the Federal
Government fulfills its financial responsibilities for the NFIP. In fiscal year 2001, FIMA took in
about $1.5 billion in revenue, mostly from insurance premiums and a $30 Federal Policy fee on
each policy sold or renewed. Revenues from insurance premiums are used to pay losses, pay
interest to the Treasury, service the policies, and pay Increased Cost of Compliance claims that
provide financial resources for protecting buildings from future flood damages. Revenue from
the Federal Policy Fee supports almost all the flood mapping and floodplain management
activities of the Program including the Flood Mitigation Assistance program.

Sale of Flood Insurance

FEMA works closely with the insurance industry to facilitate the sale and servicing of flood
insurance policies. Flood insurance under the NFIP is sold to owners of property located in
NFIP communities through two mechanisms: 1) through state-licensed property and casualty
insurance agents and brokers who deal directly with FEMA; and 2) through private insurance
companies with a program created in 1983 known as “Write Your Own” (WYO).


                                                22
NFIP Description                                                                 August 1, 2002

The WYO Program was started to increase the NFIP policy count and geographic distribution of
policies by taking advantage of the private insurance industry’s marketing channels and existing
policy base to sell flood insurance. Eighty-six private insurance companies issue policies and
adjust flood claims in their own names under the NFIP. The insurers receive an expense
allowance and remit premium income in excess of this allowance to the Federal Government.
FEMA pays losses through a letter of credit and sets the rates, coverage limitations, and
eligibility requirements. The premium charged for NFIP flood coverage by a WYO Company is
the same as that charged by the Federal Government through the direct program. Currently about
95% of the flood policies issued under the NFIP are written through the WYO Program.

The NFIP is not the only source of flood insurance. Businesses have been able to purchase flood
insurance under Difference In Conditions policies from some insurance companies over the
years. Flood coverage for residential homeowners has been more difficult to acquire from the
private insurance market. The often-catastrophic nature of flooding has kept most insurers,
outside of the NFIP, from writing this coverage. There are companies, such as Lloyds of
London, that will, on a limited basis, provide flood insurance to some properties.

Flood Insurance Policy

The Standard Flood Insurance Policy (SFIP) specifies the terms and conditions of the agreement
of insurance between FEMA or a WYO company as the Insurer and the Insureds. Insureds in
NFIP communities include owners, renters, builders of buildings that are in the course of
construction, condominium associations, and owners of residential condominium units.

"Flood" is defined in the SFIP, in part, as:

     “A general and temporary condition of partial or complete inundation of two or more
     acres of normally dry land area or of two or more properties (at least one of which is
     your property) from overflow of inland or tidal waters, from unusual and rapid
     accumulation or runoff of surface waters from any source, or from mudflow.”

The SFIP is issued on one of three available policy forms, depending on the occupancy of the
building, to provide coverage for the peril of flood.

•   The Dwelling Form is used to insure 1-4 family buildings and individual residential
    condominium units.
•   The General Property Form covers residential buildings of more than 4 families as well as
    non-residential risks.
•   The Residential Condominium Building Association Policy (RCBAP) Form insures
    associations under the condominium form of ownership.

Eligible Structures

Sections 1305 of the 1968 Act establishes the scope of the flood insurance program for eligible
structures. As a priority, the 1968 Act requires that flood insurance be made available to 1-4
family residential buildings, small businesses, and churches. It gave permission after study to


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NFIP Description                                                                      August 1, 2002

extend flood insurance to other residential properties, other business properties, agricultural
properties, properties occupied by private nonprofit organizations, and properties owned by State
or local governments. Currently insurance is available for all these types of properties and their
contents with limited exceptions. Property owners in NFIP communities may purchase flood
insurance whether the building or its contents is located in or outside the floodplain.
In order to be eligible for flood insurance, a structure must have at least 2 solid walls and a roof,
be principally above ground, and not entirely over water. This includes manufactured (i.e.,
mobile) homes that are anchored to permanent foundations and travel trailers without wheels that
are anchored to permanent foundations and are regulated under the community's floodplain
management and building ordinances or laws. Contents of insurable walled and roofed buildings
are insurable under the policy as a separate coverage.

Buildings entirely over water or principally below ground, gas and liquid storage tanks, animals,
birds, fish, aircraft, wharves, piers, bulkheads, growing crops, shrubbery, land, livestock, roads,
machinery or equipment in the open, and generally motor vehicles are not insurable. Most
contents and finishing building materials located in a basement are not covered. Similarly, this
coverage limitation applies to enclosures below the lowest elevated floor of an elevated building
constructed after the FIRM became effective.

Section 1316 of the 1968 Act authorizes FIMA to deny flood insurance "for any property which
the Director finds has been declared by a duly constituted state or local zoning authority, or
other authorized public body, to be in violation of a state or local laws, regulations, or
ordinances". Section 1316 is initiated when an appropriate authority in the State or community
submits a declaration to the Administrator of the FIMA specifically stating that the structure is a
violation. When the Administrator of the FIMA makes a finding of a valid declaration of a
violation, flood insurance is not available and no new policy can be written to cover the building,
nor can an existing policy be renewed.

Coastal Barrier Resources System

The purchase of flood insurance is also limited in the Coastal Barrier Resources System.
Congress passed laws limiting Federal expenditures in certain coastal areas and designating them
as a part of the Coastal Barrier Resources System (CBRS) or as Otherwise Protected Areas
(OPAs). In these areas, there is a prohibition for the expenditure of most Federal funds. These
prohibitions refer to "any form of loan, grant, guarantee, insurance, payment, rebate, subsidy or
any other form of direct or indirect Federal assistance," with specific and limited exceptions.

Older buildings constructed before dates established by the Coastal Barrier Resources Act of
1982 and the Coastal Barrier Improvement Act of 1990 remain eligible for Federal flood
insurance while new construction or substantially improved structures located within these
designated areas are not eligible for flood insurance. If, at the time of a loss, it is determined that
a policy has been inadvertently issued on new construction or substantial improvements located
in a CBRS area, any claim will be denied, the policy canceled, and the premium refunded. The
CBRS areas are located in nearly 400 communities on the Atlantic and Gulf coasts and along the
Great Lakes shores, and are delineated on the communities' flood maps and cover an estimated 3
million acres.



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NFIP Description                                                                  August 1, 2002


Waiting Period

Unlike other property insurance, agents who write policies under the NFIP cannot “bind”
coverage. A purchaser of flood insurance must wait 30 days from the date the application is
completed and the premium presented before the policy becomes effective. A change in the
waiting period from 5 days to 30 days was included as part of the National Flood Insurance
Reform Act of 1994. This addressed a problem encountered where individuals with properties
on larger rivers could wait until properties many miles upriver were flooding before purchasing
coverage.

There are however a several exceptions to the 30-day waiting period. For example, the 30-day
waiting period will not apply when a new flood insurance policy is required in connection with
the making, increasing, extension, or renewal of a loan, such as a second mortgage. The 30-day
waiting period will not apply when an additional amount of insurance is required during the 13-
month period beginning on the effective date of a map revision. Also, the 30-day waiting period
does not apply when a lender discovers that a loan that they have made is in a SFHA and is
required to carry flood insurance under the Mandatory Flood Insurance Purchase Requirement.

Coverage Amounts

Under the NFIP there are maximum amounts of coverage available under the Emergency
Program and the Regular Program. Under the Emergency Program, non-actuarial, federally
subsidized rates in limited amounts are available prior to completion of a community’s Flood
Insurance Study (FIS). Once more detailed risk data is provided to the community in the form of
a FIRM and a FIS, the community is entered into the Regular Program and full limits of
coverage are made available. Nearly all participating communities are in the Regular Program,
and individuals can purchase flood insurance up to the following amounts.

•   Residential 1-4 family unit buildings and individual residential condominium units are
    written under the Dwelling Form and are eligible for up to $250,000 in building coverage and
    up to $100,000 in personal property coverage.
•   Residential buildings containing more than 4 units are eligible for up to $250,000 in building
    coverage and up to $100,000 on personal property.
•   Non-residential buildings are eligible for up to $500,000 in building coverage and up to
    $500,000 on personal property written on the General Property Form.
•   Under the RCBAP Form a condominium association can purchase coverage on a building,
    which includes all the units within the building and the improvements within the units, up to
    $250,000 times the number of units within the residential building. Personal property
    coverage on the form is limited to $100,000 per building.

The average amount of insurance coverage purchased under the NFIP is $131,670, which
includes coverage for the building and its contents.




                                               25
NFIP Description                                                                   August 1, 2002


Other Coverages

In addition to providing coverage for Building and Personal Property, the SFIP also provides
Other Coverage for Debris Removal, Loss Avoidance Measures, and, under the Dwelling Form,
coverage for Condominium Loss Assessments if the policy insures a condominium unit. The
SFIP includes coverage for Pollution Damage if the damage results from a flood. All of these
coverages are provided within the purchased policy limits.

All three policy forms provide Increased Cost of Compliance (ICC) coverage. ICC coverage
provides for the payment of a claim to help pay for the increased costs to comply with State or
community floodplain management laws or ordinances after a flood in which a building has been
declared substantially damaged or repetitively damaged. When an insured building is damaged
by a flood and the community declares the building to be substantially or repetitively damaged,
thus triggering the requirement to comply with a community floodplain management ordinance,
ICC will help pay for the cost to elevate, relocate, demolish, or floodproof (non-residential
buildings only) up to a maximum of $20,000. This coverage is in addition to the building
coverage for the repair of actual physical damages from flood under the SFIP, but the total paid
cannot exceed the maximum limit set by Congress for that type of building.

The maximum limit of $20,000 will help property owners insured under the NFIP to pay for a
portion or, in some cases, all of the costs of undertaking actions to protect homes and businesses
from flood losses. In addition, an ICC claim payment can be used to complement and
supplement funds under other mitigation programs such as the Flood Mitigation Assistance
program and FEMA’s Hazard Mitigation Grant Program to assist communities in implementing
measures to reduce or eliminate the long-term risk of flood damage to buildings insured under
the NFIP. As of November 30, 2001, approximately 689 claims have been paid under the ICC
coverage to elevate, relocate, demolish, or floodproof structures for just over $7.5 million.

Ratemaking

The 1968 Act separated the flood insurance ratemaking process into two distinct categories:
subsidized rates and actuarial rates. Congress authorized the NFIP to offer policies at subsidized
rates (at less than full actuarial risk rates) to existing buildings constructed on or before
December 31, 1974 or before the effective date of the initial FIRM, whichever is later. Congress
concluded that these buildings were built without the occupants’ full knowledge and
understanding of the flood risk, and to rate them using the actuarial rates might make the flood
insurance prohibitively expensive. FEMA estimates that risks in this class are paying on average
only 35 to 40 percent of what the full risk premium should be to fund the long-term expectation
of the flood losses to the building. Only such general rating factors as flood-risk zone,
occupancy type, and building type are used to rate these buildings for flood insurance. Even
though premiums for policies on existing buildings are subsidized, floodplain occupants pay for
at least part of the cost of the insurance and no longer need most disaster assistance. (Note:
Subsidized premiums mean that the insured is paying less than their full-risk premium. The
difference between this full-risk premium and the amounts the insured pays is revenue that is
foregone by the NFIP. There is no annual transfer from general taxpayer revenue.)




                                                26
NFIP Description                                                                     August 1, 2002

In exchange for this subsidized insurance, participating communities must require new
construction and substantially improved structures to meet the minimum requirements of the
NFIP. The 1968 Act requires that FEMA charge full actuarial rates reflecting the complete flood
risk to buildings constructed or substantially improved on or after the effective date of the initial
FIRM for the community or after December 31, 1974, whichever is later. Once FEMA identifies
the flood risk and makes the information available to communities, actuarial rating assures that
those located in such areas bear the full risks associated with buildings in flood-prone areas. The
flood insurance rates take into account a number of different factors including the flood-risk zone
shown on the FIRM, the elevation of the lowest floor above or below the BFE, the type of
building, the number of floors, and the existence of a basement or an enclosure.

The flood-risk zone and the BFE are specific factors that can differentiate the flood risk in
various areas of the country. For example, FEMA designates certain shallow flooding areas as
AO and AH zones and some riverine areas as A and AE zones. FEMA designates areas subject
to damage by waves and storm surge as V and VE zones and usually designates coastal areas
landward of the V zone as A and AE zones. This difference reflects both the lower expectation
of loss and our actual loss experience for these zones.

While FEMA prints rate tables showing all possible flood risk zones and uses them for the entire
country, FEMA does not show the same zones on every FIRM. For example, communities in
Utah or Kansas do not have V zones because they are not subject to wave action and storm
surge. However, where the same zone designation is used in two different areas of the country, it
is because our engineering studies have shown that the degree of risk is very similar.
Policyholders in AE and VE zones in one State are paying the same rates as policyholders in
another State, if the lowest floor elevation of buildings is the same in relation to the BFE. This is
because their risk of flooding is statistically the same.

The insurance aspects of the NFIP have important implications for floodplain management.
Buildings that comply with community floodplain management regulations pay premiums based
on flood insurance rates that are in most cases significantly lower than the subsidized rates
charged Pre-FIRM buildings. However, buildings constructed in violation of the community’s
floodplain management ordinance pay much higher rates, which can be thousands of dollars a
year for buildings substantially below the required elevations. FEMA bases the flood insurance
rates for Post-FIRM structures on a building’s exposure to flood damage. Based on our loss
experience on older structures built before establishment of NFIP minimum floodplain
management requirements, FEMA can generally expect that they will suffer as much as 5 times
the flood damage that compliant new structures experience. New buildings with non-compliant
ground level enclosures in coastal areas can actually represent risks that are at least as poor as the
average older Pre-FIRM buildings.

Claims

Claims under the NFIP require, as in other insurance, that the insured file a Proof of Loss. This
must be submitted within 60 days of the loss, unless waived by the Administrator of the FIMA.
Claims can be adjusted using either an independent adjuster or an adjuster employed by a WYO
company. Under all NFIP policies, the insured pays a portion of the loss through the application


                                                 27
NFIP Description                                                                   August 1, 2002

of a deductible. In FY 2001, the NFIP paid 43,525 claims with an average claim payment of
$26,079.

The largest loss payout from a single flood event occurred in June 2001 as a result of Tropical
Storm Allison, the NFIP’s first “billion dollar storm”. The second largest flood event in dollars
paid was in Louisiana in May 1995 with payments totaling $583,952,604 and the third largest
flood event in dollars paid resulted from Hurricane Floyd in September 1999 with payments
totaling $433,384,943.

The long-term goal of the NFIP is to be actuarially sound, including consideration for potential
catastrophic loss years. In the near term, in establishing a fiscally sound program, the NFIP
overall is intended to generate premium at least sufficient to cover expenses and losses relative to
what is called the “historical average loss year”. Since the NFIP’s underwriting experience does
not include truly catastrophic loss years, the historical average is less than the true long-term
average. However, the premium income to the program is made up of two distinct pieces – Pre-
FIRM polices charged less than full-risk premiums and Post-FIRM (and other) policies charged
full-risk premiums including catastrophic loss considerations.

The NFIP’s historical average loss year is approximately $700 million in loss payments. At this
level, FIMA can maintain a Program that is self-supporting for that year. The NFIP has not been
capitalized, but generates surplus during less-than-average-loss years and has borrowing
authority with the U.S. Treasury to cover losses in the event that policyholder funds and
investment income are inadequate. It does not use taxpayer funds to pay claims, operating
expenses, or offset any shortfalls in premium from policies paying a subsidized flood insurance
rate. Having twenty-six percent of policyholders paying significantly less than full-risk
premiums impedes the ability to generate surplus or to repay borrowed funds, which depends on
levels of annual losses that are highly variable.

However, the possibility of borrowing funds from the Treasury would be present even if all NFIP
policyholders paid full-risk premiums should a catastrophic or a series of catastrophic flood
events occur. When the NFIP borrows money, it pays the Treasury back with interest. The NFIP
paid off the Treasury debt in June 2001 from a high of $922 million in 1999. However, because
of the extent of the flooding from Tropical Storm Allison in Texas and Louisiana resulting in
over 30,000 claims, FEMA had to borrow funds from the Treasury.

Since 1969, the NFIP has paid $11.9 billion in losses that would otherwise have been paid by
taxpayers through disaster assistance or borne by home and business owners themselves.
Moreover, NFIP floodplain management and hazard identification activities have significantly
reduced the frequency and severity of flood damages to buildings built in compliance with NFIP
standards. Structures built to NFIP criteria experience 80% less damage through reduced
frequency and severity of losses. The NFIP floodplain management requirements are estimated
to save $1 billion per year.




                                                28
NFIP Description                                                                   August 1, 2002


Marketing

Today, many Americans are either unaware that flood damage is not covered by their
homeowner’s insurance policy or they are in denial about the serious flood risks to which they
are exposed. Definitive figures on the potential market for flood insurance are difficult to obtain.
A conservative estimate is that only one-third to one-half of those in SFHAs have coverage. For
a number of flood disasters in the past few years, only 10-20% of the victims in SFHAs had
flood insurance coverage. The remaining 80-90% must rely on taxpayer-funded Federal disaster
assistance, which is very limited, loans which must be paid back, tax write-offs, or savings to
help them recover.

The insurance industry, which has been the major mechanism for the sale of flood insurance
since the Program’s inception, has repeatedly stated that the key to selling flood insurance is
public awareness on a national scale. Working with them, FEMA has designed and continues to
refine flood insurance advertising and promotional activities to educate consumers, heighten
awareness, and make the insurance agent’s job easier.

FEMA’s strategy for increasing the number of Americans insured against flood damage includes:

•   Financial incentives for WYO insurance companies to increase and retain policyholders.
•   Cover America II—a public awareness and education campaign primarily targeting
    consumers to stimulate interest in buying flood insurance. (The campaign also reaches
    insurance agents and lenders, encouraging their active involvement in flood insurance.)
•   Facilitating lender compliance with statutory flood insurance requirements through training,
    guidance materials, and regular communication with lending regulators, government
    sponsored enterprises, and lender trade associations.
•   NFIP training for insurance agents via live seminars and on-line training modules.
•   Simplifying NFIP processes to make it easier for agents to sell and consumers to buy.
•   Improving retention of policies.

Mandatory Flood Insurance Purchase Requirement
From 1968 until the adoption of the Flood Disaster Protection Act of 1973, the purchase of flood
insurance was voluntary. Property owners could make their own decision whether to purchase
flood insurance. Unfortunately, the response nationwide to purchasing flood insurance
voluntarily was less then enthusiastic. Just over 95,000 policies were in force in 1972, and very
few victims from Tropical Storm Agnes that hit that same year had flood insurance.

The 1973 Act mandated flood insurance coverage for many properties. For the first time,
regulated lending institutions could not make, increase, extend, or renew any loan secured by
improved real estate located in a SFHA in a participating NFIP community unless the secured
building and any personal property securing the loan were covered for the life of the loan by
flood insurance. Congress established this requirement because, after major flood disasters, it
became evident that relatively few individuals in eligible communities who sustained flood
damage had purchased flood insurance.



                                                29
NFIP Description                                                                  August 1, 2002

Also, Federal officers or agencies could not approve any form of loan, grant, guaranty,
insurance, payment, rebate, subsidy, disaster assistance loan or grant, for acquisition or
construction purposes within a SFHA in a participating community unless the building and any
personal property to which such financial assistance relates were covered during the life of the
property.

The Housing and Community Development Act of 1977, which amended section 202(b) of the
1973 Act, permitted regulated lending institutions to make conventional loans in a SFHA of a
non-participating community. It required them to notify the purchaser or lessee of improved
property situated in a SFHA of a non-participating community and used to secure a loan being
made, increased, extended, or renewed, whether Federal disaster assistance for flood damage will
be available.

Furthermore, Section 202(a) of the 1973 Act prohibits Federal officers or agencies from
approving any form of loan, grant, guaranty, insurance, payment, rebate, subsidy, disaster
assistance loan or grant, for acquisition or construction purposes within SFHAs of non-
participating communities. For example, this would prohibit mortgage loans guaranteed by the
Department of Veterans Affairs, insured by the Federal Housing Administration, or secured by
the Rural Economic and Community Development Services. In the case of disaster assistance
under the Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, as
amended, this prohibition only applies to assistance in connection with a flood.

Following the multi-billion dollar flood disaster in the Midwest in 1993, Congress enacted the
National Flood Insurance Reform Act of 1994. One of the purposes of the 1994 Act is to
improve compliance with the mandatory purchase requirements of the NFIP by lenders,
servicers, and secondary-market purchasers. Congress was concerned over the low level of
insurance participation among eligible property owners and resulting increases in Federal
disaster relief payments. While FEMA administers the NFIP, it has no responsibility or authority
under either the 1973 Act or 1994 Act with respect to lender compliance with the Mandatory
Flood Insurance Purchase Requirement – this responsibility falls on the Federal agency lender
regulators and secondary-market purchasers though FEMA prepares guidance materials with
respect to the NFIP and the Mandatory Flood Insurance Purchase Requirement.

The law requires Federal agency lender regulators to develop regulations to direct their federally
regulated lenders not to make, increase, extend, or renew any loan on applicable property unless
flood insurance is purchased and maintained. The law also addresses the responsibility of
regulated lending institutions and Government-Sponsored Enterprises (GSEs) (i.e., Fannie Mae
and Freddie Mac) in providing a notice of and requiring flood insurance coverage for the term of
the loan on buildings located in any SFHA in participating NFIP communities.

The 1994 Act significantly tightens the 1973 Act by imposing important new obligations on both
mortgage originators and servicers, including mandatory escrow requirements for flood
insurance and mandatory provisions for “forced placement” of insurance. Specifically, the 1994
Act requires the force placement of flood insurance if a lender or servicer determines that the
building securing the loan is not adequately insured. Also, the 1994 Act grants statutory
authority to a lender or servicer to purchase flood insurance for the building and charge a



                                                30
NFIP Description                                                                    August 1, 2002

premium to the borrower if the building is in an SFHA. In addition, Congress designated for the
first time in the 1994 Act a specific range of regulatory civil monetary penalties that may be
imposed administratively when it is found that a “pattern or practice of committing violations”
has occurred by regulated lenders.

It is the responsibility of the lender to:
      • Determine whether the building offered as security for a loan is, or will be located in an
          SFHA;
      • Document the determination using the Standard Flood Hazard Determination Form;
      • Require flood insurance to the appropriate amount when necessary;
      • Ensure that flood insurance is maintained during the life of the loan; and
      • Ensure that flood insurance is purchased and maintained if the lender becomes aware
          that the building involved subsequently is located in an area that has been remapped as a
          SFHA.

Although the intent of the 1994 Act is to require borrowers to purchase flood insurance, the
Act’s directives and prohibitions are directed to federally-regulated primary lenders and to
secondary market entities involved in mortgage loan transactions. The flood insurance
requirement does not apply to lenders or servicers that are not federally regulated or do not sell
loans to GSEs such as Fannie Mae and Freddie Mac or other GSEs.

It is a prerequisite that a designated loan have flood insurance as a condition of closing. If a
borrower will not voluntarily obtain coverage and a lender is unable to force place coverage, the
lender must deny the loan or exercise the sanction provisions of the loan document if the loan
already has been made. A lender cannot accept a borrower’s assurance that he or she will obtain
insurance coverage in the future or grant the lender indemnity while seeking coverage. Closing a
designated loan without flood insurance coverage in place constitutes a violation of the
regulation implementing the Mandatory Purchase Requirement.

Lenders on their own initiative may require the purchase of flood insurance even if a structure is
located outside the SFHA. A decision to require coverage under such circumstance is not
compelled by statute. Lenders have this prerogative to require flood insurance to protect their
investments.

Other NFIP Activities
Community Rating System

The NFIP’s Community Rating System (CRS) provides discounts on flood insurance premiums
in those communities that establish floodplain management programs that go beyond NFIP
minimum requirements. Under the CRS, communities receive credit for more restrictive
regulations, acquisition, relocation, or floodproofing of flood-prone buildings, preservation of
open space, and other measures that reduce flood damages or protect the natural resources and
functions of floodplains.




                                                 31
NFIP Description                                                                  August 1, 2002

The CRS was implemented in 1990 to recognize and encourage community floodplain
management activities that exceed the minimum NFIP standards. Section 541 of the 1994 Act
amends Section 1315 of the 1968 Act to codify the Community Rating System in the NFIP, and
to expand the CRS goals to specifically include incentives for reducing the risk of flood-related
erosion and for encouraging measures that protect natural and beneficial floodplain functions.
These goals have been incorporated into the CRS and communities now receive credit towards
premium reductions for activities that contribute to them.

Under the CRS, flood insurance premium rates are adjusted to reflect the reduced flood risk
resulting from community activities that meet the three goals of the CRS:

(1) Reduce flood losses, i.e.,
    • Protect public health and safety,
    • Reduce damage to property,
    • Prevent increases in flood damage from new construction,
    • Reduce the risk of erosion damage, and
    • Protect natural and beneficial floodplain functions;

(2) Facilitate accurate insurance rating; and

(3) Promote the awareness of flood insurance.

There are 10 CRS classes: Class 1 requires the most credit points and gives the largest premium
reduction; Class 10 receives no premium reduction. CRS premium discounts on flood insurance
range from 5 percent for Class 9 communities up to 45 percent for Class 1 communities. The
CRS recognizes 18 creditable activities, organized under four categories: Public Information,
Mapping and Regulations, Flood Damage Reduction, and Flood Preparedness.

For example, credits are provided for use of future conditions hydrology and more restrictive
floodway standards, prohibiting fill in the floodway, and adopting compensatory storage
regulations, innovative land development criteria, stormwater management regulations, other
higher regulatory standards, and local floodplain management plans. Credits are also provided in
the CRS for preserving open space in their natural state and for low-density zoning and for
acquiring and clearing buildings from the floodplain and returning the area to open space. The
2002 CRS Coordinator’s Manual includes a new section, “Land Development Criteria,” which
specifically credits community land development regulations that limit development in the
floodplain or provide incentives to limit floodplain development. Communities receive credits
for adopting smart growth land development criteria and for creating open space through their
land development process.

There are now over 900 communities receiving flood insurance premium discounts based on
their implementation of local mitigation, outreach, and educational activities that go well beyond
minimum NFIP requirements. Although premium discounts are one of the benefits of
participation in the CRS, these communities are carrying out important activities that save lives,
reduce property damage, and protect the natural and beneficial functions of floodplains. These
900-plus communities represent a significant portion of the nation’s flood risk as evidenced by


                                                32
NFIP Description                                                                     August 1, 2002

the fact that they account for over 66% of the NFIP’s policy base. Communities receiving
premium discounts through the CRS cover a full range of sizes from small to large, and a broad
mixture of flood risks, including coastal and riverine.

The CRS – its development and implementation – has benefited from the advice and effort of
Federal, State, and local officials, professionals with expertise in floodplain management and
insurance, and academics. A multidisciplinary approach led to successful implementation of the
program and this same approach has been employed in reviewing and refining the CRS over the
last 10 years.

Flood Mitigation Assistance Program

The Flood Mitigation Assistance (FMA) program provides funding to assist States and
communities to accomplish flood mitigation planning and implement measures to reduce future
flood damages to structures. This program is authorized under the 1994 Act. These funds can be
used before disaster strikes.

The FMA program provides funding up to $20 million a year with a 75/25 cost share. Examples of
eligible activities for planning grants include conducting local planning meetings to obtain citizen
input; contracting for engineering or planning technical assistance; surveying structures at risk of
flooding; and assessing repetitive losses. Only projects for mitigation activities specified in an
approved Flood Mitigation Plan are eligible for project grants. For example, a community may
determine in its plan that acquisition of structures would be the preferred alternative for floodway
areas, while elevation may be more appropriate solution in other areas of the floodplain.

The purpose of FMA project grants is to assist States and communities in implementing flood
mitigation projects to reduce the risk of flood damage to NFIP-insurable structures. Examples of
eligible types of projects include:

•   Elevation of NFIP-insured residential structures and elevation or dry-floodproofing of non-
    residential structures in accordance with 44 CFR §60.3.
•   Acquisition of NFIP-insured structures and underlying real property.
•   Relocation of NFIP-insured structures from acquired or restricted real property to sites not prone
    to flood hazards.
•   Demolition of NFIP-insured structures on acquired or restricted real property.
•   Beach nourishment activities that focus on facilitating natural dune replenishment through the
    planting of native dune vegetation and/or the installation of sand fencing. Placement of sand on
    beach is not eligible.
•   Minor physical flood control projects that do not duplicate the flood-prevention activities of
    other Federal agencies that address localized flood problem areas such as stabilization of stream
    banks, modification of existing culverts, creation of small stormwater retention basins. Major
    structural flood control structures, such as levees, dams, and seawalls are not eligible.

To be eligible for funding, a project must be:

•   Cost-effective;


                                                 33
NFIP Description                                                                        August 1, 2002


•   Conform with applicable Federal and State regulations and executive orders;
•   Be technically feasible;
•   Conform with the Flood Mitigation Plan; and
•   Be located physically in a participating NFIP community that is not on probation.

The 1994 Act directs FEMA to “make every effort to provide mitigation assistance for mitigation
plans proposing activities for repetitive loss structures and structures that have incurred
substantial damage.” FEMA is focusing the FMA program on repetitive loss properties. The
NFIP’s Repetitive Loss Strategy is to identify properties throughout the country that are most at
risk for repeat flooding, and to reduce their exposure through targeted buyouts, relocation, and
elevation. Approximately 45,638 repetitive loss properties are currently insured. These buildings
are projected to cost the program $200 million per year in claims. New repetitive loss properties
continue to emerge each year. FEMA has identified target buildings that are currently insured
and have the greatest risk. There are 8,753 buildings with four or more losses, and l,160
buildings with two or three loses that exceed building value. Most of these target buildings are
single-family residences. The limited FMA program funds ($20 million) are a key resource
toward achieving this goal.

For projects that directly affect individual structures, such as elevation, acquisition, or relocation,
each structure must have a flood insurance policy in force. FMA will be available to States and
communities for mitigation activities that may benefit insurable properties not insured under the
NFIP. For minor structural flood control projects, the effectiveness of the project can be based on
benefits provided to insurable structures not insured under the NFIP.

Since 1996, FMA program funds have been used to acquire 484 flood-prone structures, relocate
16 flood-prone structures, elevate 491 flood-prone structures, and dry-floodproofed 8 flood-
prone non-residential structures. To date, FEMA has allocated through FMA $97.6 million for
projects; $9 million for plans; and $10.8 million for technical assistance.

The predecessor to the FMA program was Section 1362 of the 1968 Act, which was also
intended to address existing flood-prone structures. This provision authorized the NFIP to
purchase certain insured properties that had been either substantially or repetitively damaged and
transfer the land to a public agency for open space. Funds were appropriated for Section 1362
annually from 1980 until 1994, when the FMA program replaced the Section 1362 program.
Over the period during which funds were available, approximately 1,400 properties were
purchased at a total cost of about $51.9 million.

Other FEMA Programs
The following are other FEMA programs and activities that provide mitigation assistance and
planning assistance in reducing the Nation’s flood losses.

Hazard Mitigation Grant Program

The Hazard Mitigation Grant Program (HMGP) was created in 1988 by Section 404 of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (amendments


                                                   34
NFIP Description                                                                     August 1, 2002

include the Hazard Mitigation and Relocation Assistance Act of 1993 and the Disaster
Mitigation Act of 2000). The HMGP assists States and communities in implementing long-term
hazard mitigation measures for all hazard types following a major disaster declaration. A key
purpose of the HMGP is to ensure that the opportunity to take critical mitigation measures to
protect life and property from future disasters is not lost during recovery and reconstruction
process following a disaster.

HMGP funds are made available based on 15% of the estimated Federal funds to be spent on the
Public and Individual Assistance programs (minus administrative expenses) for each disaster.
States whose mitigation planning process meets enhanced criteria will be able to receive 20%
funding under the regulations implementing the Disaster Mitigation Act of 2000. As of
September 2001, 5,560 projects have been approved at a total Federal expenditure of
approximately $2.6 billion.

Eligible mitigation measures under the HMGP include acquisition or relocation of flood-prone
structures, elevation of flood-prone structures, seismic rehabilitation of existing structures, and
strengthening of existing structures against wildfire. Additionally, up to seven percent of the
HMGP funds may be used to develop State and/or local mitigation plans.

The State, as grantee, is responsible for administering the HMGP. Communities develop HMGP
project applications and apply for funds through the State. The State notifies potential applicants
of the availability of funding, defines a project selection process, ranks and prioritizes projects
for funding, and forwards projects to FEMA for approval. The applicant, or subgrantee, carries
out approved projects. The State or local government must provide a 25 percent match, which
can be from a combination of cash and in-kind sources.

In response to flood hazards, FEMA’s primary emphasis is on nonstructural hazard mitigation
measures. Nonstructural measures include the acquisition and demolition, relocation, elevation,
or floodproofing of flood-damaged or flood-prone properties.

Since the program’s inception to September 2001, FEMA has permanently eliminated or
significantly reduced future flood damages for over 25,801 at-risk structures through
nonstructural measures as follows: acquisition of 22,564 properties; relocation of 733 properties;
and elevation of 2,504 properties. The total Federal expenditure for these measures was
$826,943,785.

Disaster Mitigation Act of 2000

The Disaster Mitigation Act (DMA) of 2000 amended the Robert T. Stafford Disaster Relief and
Emergency Assistance Act of 1988. The DMA authorizes the creation of a pre-disaster
mitigation program to make grants to State, local and tribal governments. It also includes a
provision that defines mitigation planning requirements for State, local and tribal governments.
This new section (Section 322) establishes a new requirement for local and tribal mitigation
plans; authorizes up to 7 percent of the HMGP funds available to a State to be used for
development of State, local and tribal mitigation plans; and provides for States to receive an
increased percentage of HMGP funds from 15 percent to 20 percent if, at the time of the disaster



                                                 35
NFIP Description                                                                  August 1, 2002

declaration, the State has in effect a FEMA approved State Mitigation Plan that meets the criteria
established in regulations.

Planning Initiatives

In addition to providing pre-and post-disaster planning assistance to States and communities,
FEMA has undertaken a number of other initiatives to encourage communities to undertake
mitigation planning and to incorporate natural hazards into their comprehensive land use
planning. FEMA and the American Planning Association (APA) jointly developed a publication
entitled Planning for Post-Disaster Recovery and Reconstruction that encourages use of
planning tools to guide the rebuilding process for a safer and more sustainable community. This
document was published in 1998 as part of their Planning Advisory Service series in an effort to
use APA’s distribution system to reach out to the planning community.

FEMA also participated in and provided financial support to HUD’s Growing Smart initiative
working with APA to develop a natural hazards element for a local comprehensive or general
plan. FEMA has prepared a publication on “sustainability,” Planning for a Sustainable Future,
The Link Between Hazard Mitigation and Livability. A series of “how-to” manuals on natural
hazards planning is being developed for publication in Fall 2002. One of the “how-to” manuals,
Understanding Your Risks: Identifying Hazards and Estimating Losses, was published in August
2001. FEMA expects to encourage State and community planning through the new pre-disaster
mitigation provisions of Disaster Mitigation Act of 2000. Information on mitigation planning
programs and guidance can be found at www.fema.gov/fima/planning.shtm.




                                               36
NFIP Description                                              August 1, 2002


A Key To The Acronyms Used In This Document
APA - American Planning Association
BFE   - Base Flood Elevation
BPAT - Building Performance Assessment Team
CAC - Community Assistance Contact
CAP   - Community Assistance Program
CAV - Community Assistance Visit
CBRS - Coastal Barrier Resources System
CFR   - Code of Federal Regulations
CRS   - Community Rating System
CTP   - Cooperative Technical Partners
DFIRM - Digital Flood Insurance Rate Map
DMA - Disaster Mitigation Act of 2000
EMI   - Emergency Management Institute
E.O.  - Executive Order
FEMA - Federal Emergency Management Agency
FIA   - Federal Insurance Administration
FIMA - Federal Insurance and Mitigation Administration
FIRM - Flood Insurance Rate Map
FIS   - Flood Insurance Study
FMA - Flood Mitigation Assistance program
GSE   - Government-Sponsored Enterprise
HMGP - Hazard Mitigation Grant Program
HUD - Housing and Urban Development (Department of)
ICC   - Increased Cost of Compliance
LOMA - Letter of Map Amendment
LOMR - Letter of Map Revision
LOMR-F- Letter of Map Revision based on Fill
NFIP   - National Flood Insurance Fund
NFIP - National Flood Insurance Program
NFIRA - National Flood Insurance Reform Act
OMB - Office of Management and Budget
RCBAP - Residential Condominium Building Association Policy
OPAs - Otherwise Protected Areas
SFHA - Special Flood Hazard Area
SFIP   - Standard Flood Insurance Policy
TB     - Technical Bulletin
WYO - Write-Your-Own




                                          37
        Texas Nonpoint Source
         Management Program




Texas Commission on       Texas State Soil and
Environmental Quality   Water Conservation Board



SFR-068/04                           December 2005
When your publication is complete,
Agency Communications will put the page
containing the agency logo, other agency
information, and the ADA statement here.
Texas Nonpoint Source
Management Program




                 2005




              Prepared by the

 Texas Commission on Environmental Quality
                    and the
Texas State Soil and Water Conservation Board




               SFR-068/04
              December 2005
Contents

Chapter 1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Nine Elements of Texas’ NPS Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Major Issues Facing Water Quality in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Chapter 2 Texas' Plan for Nonpoint Source Pollution Management . . . . . . . . . . . 9

The Nonpoint Source Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
      State Priorities for CWA §319 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
      Resource Leveraging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Clean Water Act State Revolving Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Partnerships for Conducting Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Goals for NPS Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
       Long-Term Goal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
       Short-Term Goals and Milestones . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapter 3 Texas’ Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A Watershed Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       17
      Managing Surface Water by Geographic Area . . . . . . . . . . . . . . . . . . . . . . . . .                            18
      The Water Quality Management Cycle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         21
      Standards and Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           22
      Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   24
      Assessment and Targeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             27
      Strategies for Protecting and Improving Water Quality . . . . . . . . . . . . . . . . . .                              32
      Implementing Plans to Restore Water Quality . . . . . . . . . . . . . . . . . . . . . . . . .                          35

A Joint Effort-Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Gauging Success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Chapter 4 Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Interstate and International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
        Interstate Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
        International Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
       Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
       U.S. Geological Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46


TCEQ/TSSWCB joint publication SFR-68/04                                                                                      iii
           National Oceanic and Atmospheric Administration . . . . . . . . . . . . . . . . . . . . .                             46
           U.S. Army Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                46
           U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      46
           U.S. Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              47

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   48
       Texas State Soil and Water Conservation Board . . . . . . . . . . . . . . . . . . . . . . . .                             48
       Texas Commission on Environmental Quality . . . . . . . . . . . . . . . . . . . . . . . . .                               48
       Texas Water Development Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       49
       Texas Parks and Wildlife Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       49
       Texas Agricultural Experiment Station . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       49
       Texas Department of Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     49
       Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . . . . . .                                50
       Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   50
       Texas Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            50
       Texas Cooperative Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   51
       Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . . .                              51
       Texas General Land Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 51
       Railroad Commission of Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    51
       Texas Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      52
       Texas Department of State Health Services . . . . . . . . . . . . . . . . . . . . . . . . . . .                           52

Interagency Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Stakeholder Involvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
       Coordinated Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Stakeholder Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       55
       National Natural Resources Conservation Foundation . . . . . . . . . . . . . . . . . . .                                  55
       Texas Forestry Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                55
       Clean Rivers Program Stakeholder Workgroup . . . . . . . . . . . . . . . . . . . . . . . .                                55
       Clean Rivers Program Basin Steering Committees . . . . . . . . . . . . . . . . . . . . . .                                56
       Local Watershed Action Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         56
       NPS Stakeholders Forum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                56
       Texas Watershed Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          57
       Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            57
       Coastal Coordination Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  58
       Texas Alliance of Groundwater Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         58
       Soil and Water Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     59

Importance of Local Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Chapter 5 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

Surface Water Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           67
       Protecting Surface Water Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    68
       Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         71
       Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          73

iv                                                                           TCEQ/TSSWCB joint publication SFR-68/04
          Total Maximum Daily Loads (TMDLs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
          Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Groundwater Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        80
      Measuring Groundwater Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   80
      Aquifer Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         81
      Data Collection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       82
      Assessing the Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        82
      Monitoring the Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          84

Chapter 6 Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

Surface Water Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   86
       TMDL Implementation Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  88
       Watershed Protection Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             88
       Water Quality Trading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          88

Groundwater Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   89
      Joint Groundwater Monitoring and Contamination Report . . . . . . . . . . . . . . .                                     89
      Groundwater Protection Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   89
      Groundwater Conservation Districts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      90

Remediation of Contaminated Sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             90
      Superfund Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           91
      Brownfields Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           91
      Voluntary Cleanup Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                91
      Corrective Action Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               92
      Leaking Petroleum Storage Tank Program . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          92

Emergency Response and Disaster Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      92
      Floodplain Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               93
      Emergency Response Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    94
      Coastal Oil Spill Prevention and Response . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       95
      Kills and Spills Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         96

Hydromodification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
      Clean Water Act § 401/404 Water Quality Certification . . . . . . . . . . . . . . . . . 98
      Water Rights Permit Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Marinas and Recreational Boating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
      The Clean Marina Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
      The Clean Texas Marinas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

Solid and Hazardous Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  102
       State Solid Waste Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  102
       The Beneficial Use Sludge Permitting Program . . . . . . . . . . . . . . . . . . . . . . .                         103
       The Illegal Disposal Abatement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     104
       Texas Environmental Enforcement Task Force . . . . . . . . . . . . . . . . . . . . . . . .                         104

TCEQ/TSSWCB joint publication SFR-68/04                                                                                       v
          Citizen Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       105
          Citizen Environmental Watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              106
          Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   106
          Used Oil Recycling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       107
          Oil and Gas Waste Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 107
          The TCEQ Household Hazardous Waste Management Program . . . . . . . . . .                                          108
          Tire Disposal Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        108
          The City of San Antonio Waste Management Programs . . . . . . . . . . . . . . . . .                                109
          City of Austin Biosolids Composting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  109

Wastewater Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          110
      The On-Site Sewage Facility Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        110
      The Texas On-Site Wastewater Treatment Research Council . . . . . . . . . . . .                                        111
      The City of El Paso Reclaimed Water System . . . . . . . . . . . . . . . . . . . . . . . .                             111
      The Brazos River Authority Technical Assistance Program . . . . . . . . . . . . . .                                    112

Storm Water Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           113
      State Storm Water Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        113
      Texas Department of Transportation Storm Water Management Guidelines .                                                 114
      The City of Dallas Trinity River Corridor Project . . . . . . . . . . . . . . . . . . . . . .                          115
      The San Antonio River Tunnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   116
      Integrated Storm Water Management Project . . . . . . . . . . . . . . . . . . . . . . . .                              116
      The San Angelo Urban Nonpoint Source Abatement Program . . . . . . . . . . . .                                         116

Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       117
        Groundwater Pesticide Management Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        118
        Surface Water Pesticide Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     118
        Pesticide Review Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             120
        Agricultural Pesticide Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                121
        The Structural Pest Control Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                121
        Agriculture Resource Protection Authority . . . . . . . . . . . . . . . . . . . . . . . . . . .                      122
        The Agricultural Waste Pesticide Collection Program . . . . . . . . . . . . . . . . . .                              122

Agricultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          122
       Agricultural Waste Permitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 123
       TSSWCB Water Quality Management Plan Program . . . . . . . . . . . . . . . . . . .                                    124
       The Dairy Outreach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                124
       The Texas Brush Control Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     125
       The Agricultural Loan Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 125
       The Private Lands Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         125
       The Environmental Quality Incentives Program . . . . . . . . . . . . . . . . . . . . . . .                            126
       The Watershed Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               127
       Conservation Technical Assistance Program . . . . . . . . . . . . . . . . . . . . . . . .                             127
       Conservation Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  127
       USDA-Agricultural Research Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      128
       The Texas Institute for Applied Environmental Research . . . . . . . . . . . . . . . .                                128
       The Texas Water Resources Institute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     129
       The Lower Colorado River Authority - Creekside Conservation Program . . .                                             129

vi                                                                         TCEQ/TSSWCB joint publication SFR-68/04
Silvicultural Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         130
        The Texas Forest Service Resource Development Program . . . . . . . . . . . . . .                                    130
        The Forest Stewardship Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 130
        The Forest Land Enhancement Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                        131

Pollution Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     131
        The Site Visit Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           131
        The Small Towns Environment Program . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          131
        The Texas Country Cleanup Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      132
        Supplemental Environmental Projects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      132
        The Clean Texas Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              132
        Oil and Gas Waste Minimization Program . . . . . . . . . . . . . . . . . . . . . . . . . . .                         132
        Texas Chemical Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             133

Protection for Drinking Water Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
        Underground Injection Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
        The Source Water Assessment and Protection Program . . . . . . . . . . . . . . . . . 134

Aquifer Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   136
       The Texas Groundwater Protection Committee . . . . . . . . . . . . . . . . . . . . . . .                              136
       Underground Storage Tank Installer Licensing Program . . . . . . . . . . . . . . . .                                  137
       Texas Department of Licensing and Regulation . . . . . . . . . . . . . . . . . . . . . . .                            137
       Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                      139
       Environmental Permitting Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     140
       The Railroad Commission of Texas - Oil and Gas Well Plugging Program . .                                              141

Wetlands Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    141
      The Wetlands Reserve Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   142
      The Texas Wetlands Conservation Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                         142
      Wetlands Planning Efforts in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     142
      Wetlands Assistance for Landowners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       143

Coastal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   143
       The Texas Coastal Management Program/Coastal Coordination Council . . .                                               145
       The National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  147
       Coastal Habitat Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             148
       The BEACH Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           149
       The Gulf of Mexico Community-Based Restoration Program . . . . . . . . . . . .                                        149
       The Bilge Water Reclamation Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       150
       Coastal Texas 2020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          150
       The Adopt-A-Beach Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   150

Border Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    150
       The TCEQ Border Pollution Prevention Initiative . . . . . . . . . . . . . . . . . . . . .                             151
       The Border Environment Infrastructure Fund . . . . . . . . . . . . . . . . . . . . . . . .                            152
       The International Boundary and Water Commission . . . . . . . . . . . . . . . . . . .                                 152
       The Economically Distressed Areas Program . . . . . . . . . . . . . . . . . . . . . . . . .                           153

TCEQ/TSSWCB joint publication SFR-68/04                                                                                      vii
          The Colonias Initiatives Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
          Border Recycles Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
          Friends of the Rio Grande . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

Chapter 7 Educational Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Education Through Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    155
       Texas Watch Volunteer Environmental Monitoring & Education Program . .                                       155
       The Lower Colorado River Authority - Colorado River Watch Program . . . .                                    156
       The Aquatic Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   157
       The City of Denton Watershed Protection Program . . . . . . . . . . . . . . . . . . . .                      157

Education Through Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
       Nonpoint Source Consumer Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
       Storm Drain Marking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
       Back Yard Composting and Xeriscaping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
       Teaching Environmental Sciences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
       Environmental News You Can Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
       Publications and Videos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
       Environmental Information Line . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
       Small Spill Prevention Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
       The Texas Cooperative Extension Agricultural Outreach Program . . . . . . . . 160
       The Texas A & M University On-Site Wastewater Treatment Training Center161
       Don't Mess With Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
       Keep Texas Beautiful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
       The Texas Wildscapes Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
       The Edwards Aquifer Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
       The Barton Springs/Edwards Aquifer Conservation District . . . . . . . . . . . . . 164
       The City of Austin's "Grow Green" and "Earth Camp" . . . . . . . . . . . . . . . . . . 164
       The City of Houston's WET in the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
       The City of Fort Worth Environmental Education Programs . . . . . . . . . . . . . 166
       The City of San Antonio's Curbside Recycling Program . . . . . . . . . . . . . . . . 167

Chapter 8 Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Definition of Best Management Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Source Pollution Management . . . . . . . . . . . . . . . . . . . . . . . 168

Categories of Nonpoint Sources and Associated Pollutants . . . . . . . . . . . . . . . . . . . . 171
      Major Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
      Special Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Appendix A Certification of Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TCEQ-General Counsel’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

TSSWCB-Attorney General’s Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

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Appendix B Priority Water Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Appendix C Overview of Current Priority Watersheds, Impairments, Milestones,
           and Estimated Timelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

Appendix D Aquifer Vulnerability Ranking System . . . . . . . . . . . . . . . . . . . . . . . 253

Appendix E The History of Nonpoint Source Management . . . . . . . . . . . . . . . . . 256

Clean Water Act of 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      256
      National Urban Runoff Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  257
      National Pollutant Discharge Elimination System . . . . . . . . . . . . . . . . . . . . .                            257
      Rural Clean Water Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              257
      Clean Water Action Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            259
      Total Maximum Daily Load Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       260
      National Estuary Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             260

Other Federal Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     261
       Coastal Zone Nonpoint Source Management . . . . . . . . . . . . . . . . . . . . . . . . .                           261
       Safe Drinking Water Act: Source Water Protection . . . . . . . . . . . . . . . . . . . .                            263
       Intermodal Surface Transportation Efficiency Act . . . . . . . . . . . . . . . . . . . . .                          263
       The Food Security Act of 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               263
       Federal Agriculture Improvement and Reform Act of 1996 . . . . . . . . . . . . . .                                  264
       Farm Security and Rural Investment Act of 2002 . . . . . . . . . . . . . . . . . . . . . .                          264

State of Texas Nonpoint Source Control Programs . . . . . . . . . . . . . . . . . . . . . . . . . . .                      264
        General Discharge Prohibition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            264
        Texas Local Government Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                265
        Municipal Pollution Abatement Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  265
        Livestock and Poultry Production Operations . . . . . . . . . . . . . . . . . . . . . . . . .                      265
        Edwards Aquifer Protection Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   266
        On-Site Sewage Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          266
        Soil Conservation Laws and Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    267
        Water Quality Management Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 267

Appendix F Clean Water Act, § 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

Appendix G Federal Consistency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279

TCEQ Review of Federal Assistance Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                       279
     Department of Commerce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                279
     Department of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             280
     Department of Housing and Urban Development . . . . . . . . . . . . . . . . . . . . . .                               280

TCEQ/TSSWCB joint publication SFR-68/04                                                                                      ix
           Department of the Interior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           280
           Department of Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               281
           General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                282
           Small Business Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                282
           Environmental Protection Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                  282
           Department of Energy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           283
           TCEQ Review of Federal Development Projects . . . . . . . . . . . . . . . . . . . . . .                              283
           USDA, Forest Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           283
           USDA, Natural Resources Conservation Service/Farm Service Agency . . . .                                             284
           Department of the Interior, Bureau of Land Management . . . . . . . . . . . . . . .                                  284
           Department of the Interior, Bureau of Reclamation . . . . . . . . . . . . . . . . . . . .                            285
           Department of the Interior, Fish and Wildlife Service . . . . . . . . . . . . . . . . . .                            285
           Department of the Interior, Surface Mining . . . . . . . . . . . . . . . . . . . . . . . . . .                       285
           Department of Defense, Defense Installations . . . . . . . . . . . . . . . . . . . . . . . .                         285
           Department of Defense, Corps of Engineers . . . . . . . . . . . . . . . . . . . . . . . . . .                        285
           Department of Transportation, Federal Aviation Administration . . . . . . . . . .                                    286
           Department of Transportation, U.S. Coast Guard . . . . . . . . . . . . . . . . . . . . . .                           286
           General Services Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                286

Appendix H Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

           Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

           State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Specific Funding for TCEQ Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287

Funding Sources for Agricultural & Silvicultural Nonpoint Source Pollution Abatement
        . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289

Appendix I Summary of Public Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

Appendix J Acronyms and Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293

Appendix K Web Sites of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Bay and Estuary Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Council of Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
Federal Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Groundwater Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297

Industrial Councils . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298
Interstate and International Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298


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River Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

State Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299



TABLES AND FIGURES
Figure 3.1 Major River Basins and Planning Areas in Texas . . . . . . . . . . . . . . . . . . . . 20
Figure 3.2 The Water Quality Management Cycle of the Watershed Approach . . . . . 21
Figure 3.3 Stakeholder Forums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Table 1.1 Nonpoint Source Pollution: Sources and Activities . . . . . . . . . . . . . . . . . . . 7

Table 2.1 The Nonpoint Source Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Table 3.1 Categories of Use Attainment in the Water Quality Inventory . . . . . . . . . . 29
Table 3.2 Criteria for Prioritizing TMDLs (Category 5A waters) for Development . 31

Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues
          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Table 4.2 Federal, State, and Local Programs and Activities for Assessment,
           Implementation, and Education within the Texas Nonpoint Source Pollution
             Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List . . . . . . . . 74
Table 5.2 TGPC Groundwater Classification System . . . . . . . . . . . . . . . . . . . . . . . . . 81

Table 6.1 Texas Coastal NPS Management Program. Remaining Conditions and
          Anticipated Year of Condition Resolution . . . . . . . . . . . . . . . . . . . . . . . . 146

Table 8.1 Best Management Practices by Category . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Table 8.2 Best Management Practices by Source . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Table B.1 Priority Water Bodies - Surface Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Table B.2 Priority Water Bodies - Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

Table C.1 Milestone Summary Table . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Table C.2 Individual Priority Waterbody Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

Table D.1 Aquifer Vulnerability Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254




TCEQ/TSSWCB joint publication SFR-68/04                                                                                         xi
CHAPTER 1 INTRODUCTION
               Water quality is degraded when
               storm water runoff carries          NPS pollution is caused by rainfall or
                                                   snowmelt moving over and through the
               pollutants such as motor oil        ground. As the water moves over, or
               from automobiles, fertilizers       through, the ground, it picks up and carries
               from landscapes or farms, and       away natural and human-made pollutants,
               sediments from construction         eventually depositing them into lakes, rivers,
               sites into downstream creeks,       wetlands, coastal waters, and groundwater.
                                                   These pollutants include:
               rivers, lakes, aquifers, and
                                                   • excess fertilizers, herbicides, and
               estuaries. This is nonpoint             insecticides from agricultural lands and
               source (NPS) water pollution.           residential areas;
               Decisions made today about          • oil, grease, and toxic chemicals from
               how to manage nonpoint                  urban runoff and energy production;
               sources of pollution determine      •   sediment from improperly managed
                                                       construction sites, crop and forest lands,
               the quantity and quality of             and eroding streambanks;
               water resources for future          • salt from irrigation practices, petroleum
               generations. A dynamic and              production, acid drainage from
               effective nonpoint source               abandoned mines, and natural salt
                                                       deposits;
               program, implemented now,
                                                   • bacteria and nutrients from livestock,
               that focuses on planning, good          pet wastes, faulty septic systems, and
               science, and fiscal                     wildlife;
               responsibility will save future     • atmospheric deposition and
               generations the expense of              hydromodification.
               cleaning up what we leave
               behind and provide good-
               quality water for the use and enjoyment of all Texans.

               This report outlines Texas' comprehensive management strategy to protect
               and restore water impacted by nonpoint sources of pollution and is jointly
               developed by the Texas Commission on Environmental Quality (TCEQ)
               and the Texas State Soil and Water Conservation Board (TSSWCB). NPS
               management is a collaborative effort and the responsibility of all programs
               described in this document. This document represents a toolbox for the
               state to manage NPS pollution by listing the programs and processes
               throughout the state that address NPS pollution. This plan provides for the
               coordination of NPS related activities, establishment of statewide goals,
               prioritization of assessment and implementation activities, and elimination
               of duplication of effort among participating stakeholders.

Nine Elements of Texas’ NPS Management Program
               As prescribed by current Nonpoint Source EPA guidelines, Texas’
               program incorporates EPA’s nine key elements of an effective program,
               which allow for maximum flexibility in managing NPS pollution. These
               elements are listed below, with a summary of how the state has addressed
               them in its program. Many specific examples of the state’s application of
               the nine key elements may be found throughout this document in the


TCEQ/TSSWCB joint publication SFR-68/04                                                         1
    descriptions of various state programs and their management strategies for
    NPS pollution.

    Element 1
    Explicit short- and long-term goals, objectives and strategies that protect
    surface and groundwater.

    The section “Goals for NPS Management”, as described in Chapter 2,
    details TSSWCB and TCEQ long and short term goals of the Nonpoint
    Source Program. Many individual programs have also established long
    and short term goals that are compatible with these goals.

    Element 2
    Working partnerships and linkages to appropriate state, interstate, tribal,
    regional, and local entities, private sector groups, and Federal agencies.

    Surface water and aquifers are not limited by political boundaries and, as a
    result, environmental solutions often cross federal, state, and local levels
    of responsibility. With the extent and variety of water quality issues across
    Texas, the need for cooperation at all levels is essential.

    The state coordinates, develops, and implements the NPS program by
    using the existing infrastructure of the Clean Rivers Program (CRP), Soil
    and Water Conservation Districts (SWCDs), Texas Groundwater
    Protection Committee (TGPC), and the University System in order to
    leverage the efforts of state, federal, regional, and local entities. Through
    this infrastructure, the state establishes working partnerships for obtaining
    consensus and input on NPS issues. TCEQ and TSSWCB programs use
    the statewide Watershed Approach, as described in Chapter 3, to organize
    the participation of all stakeholders to:

       !       identify priority watersheds with NPS water quality
               problems;
       !       formulate the steps necessary to alleviate any known
               water quality problems within those watersheds; and
       !       secure and target resources in order to develop and
               implement NPS strategies that restore water quality.

    A description of various agencies and stakeholder programs, along with
    coordination of roles and table of MOAs / MOUs between the partners,
    can be found in Chapter 4.

    Element 3
    Balanced approach that emphasizes both state-wide nonpoint source
    programs and on-the-ground management of individual watersheds.

    Activities in Texas that address NPS pollution involve both statewide
    strategies and local initiatives. NPS activities are managed with a

2                                          TCEQ/TSSWCB joint publication SFR-68/04
               geographical focus where work is directed at the level in which it can be
               most effective. For example, one of the Texas’ primary statewide efforts is
               public outreach and education, which is accomplished through activities of
               the TCEQ and TSSWCB Nonpoint Source Programs. The TSSWCB
               educates producers throughout the state on how their activities may
               contribute to NPS pollution, measures they can take to minimize their
               impacts, and money that is available to help them implement these
               measures. This is accomplished through state-wide conferences, news
               articles, and educational brochures. The TCEQ has numerous programs
               throughout the agency that play significant roles in the area of statewide
               public education. In addition to statewide public outreach and education
               efforts, the Texas Clean Rivers Program and local Soil and Water
               Conservation Districts provide the framework for public outreach on a
               local watershed level. Other nonpoint source state, regional, and local
               management efforts are described in detail throughout this Management
               Program document.

               Element 4
               Abatement of water quality impairments from nonpoint source pollution
               and prevention of significant threats to water quality from present and
               future nonpoint source activities.

               The TCEQ and TSSWCB Nonpoint Source Programs use a Watershed
               Approach to focus on the most significant NPS water quality problems.
               The Texas Water Quality Inventory and 303(d) list and category structure
               provide a basis for prioritizing assessment, implementation, and education
               projects to address water quality impairments from existing sources. In
               selecting projects for funding, the TCEQ and the TSSWCB give the
               highest consideration to projects which address the most significant
               threats to water quality and have the best potential to prevent or reduce
               nonpoint sources of pollution and improve water quality.

               Many TSSWCB and TCEQ programs are preventive in nature or
               incorporate pollution prevention activities. Texas also uses regulatory
               approaches to prevent pollution. The TCEQ, TSSWCB, and other state
               programs that carry out nonpoint source management activities are
               described in Chapter 6.

               Element 5
               The state program identifies waters and their watersheds impaired by
               nonpoint source pollution and identifies important unimpaired waters that
               are threatened or otherwise at risk. Further, the state establishes a
               process to progressively address these identified waters by conducting
               more detailed watershed assessments and developing watershed
               implementation plans, and then by implementing the plans.

               Texas routinely assesses and monitors water quality under programs
               administered by the TCEQ. These data are collected by federal, state,
               regional, and local agencies and are compiled into the Clean Water Act

TCEQ/TSSWCB joint publication SFR-68/04                                                  3
    §305(b) Report and §303(d) List (otherwise known as the Texas Water
    Quality Inventory and 303(d) list). The Texas Water Quality Inventory
    categorizes water bodies impaired by nonpoint source pollution, according
    to their status, and sets forth the method by which the state will approach
    identified nonpoint source problems. CWA§303(d)-listed water bodies are
    further categorized to determine the priorities for doing further water
    quality assessments or implementing restoration activities. This strategy is
    described in Chapter 3 under TCEQ’s Watershed Approach.

    The management strategies detailed in the Watershed Approach lay out
    the processes that the TCEQ will use to progressively address impaired or
    threatened water bodies. The TSSWCB works closely with the TCEQ in
    each water body impaired by agricultural or silvicultural activities to
    perform additional targeted water quality assessments. The TSSWCB
    leads the development of TMDLs, implementation plans, and watershed
    protection plans for water bodies primarily impacted by agricultural or
    silvicultural sources, and will implement practices in those watersheds to
    mitigate the water quality problems. The TCEQ leads the development of
    TMDLs, implementations plans and watershed protection plans in areas
    affected by all other nonpoint sources.

    Element 6
    The state reviews, upgrades, and implements all program components
    required by §319(b) of the Clean Water Act, and establishes flexible,
    targeted, and iterative approaches to achieve and maintain beneficial uses
    of water as expeditiously as practicable. The state programs include:

       !       A mix of water quality-based and/or technology-based
               programs designed to achieve and maintain beneficial
               uses of water; and
       !       A mix of regulatory, non-regulatory, financial, and
               technical assistance as needed to achieve and maintain
               beneficial uses of water as expeditiously as practicable.

    The state’s Watershed Approach is based on a water quality management
    cycle which has five phases that are iterative in nature as described in
    Chapter 3. If water bodies are identified during the Assessment and
    Targeting phase as being impaired, the state considers a variety of
    approaches to implement solutions.

    Since the state does not have statutory authority to enact certain types of
    NPS regulatory measures, it must work cooperatively with local
    authorities to implement solutions. As noted in Key Element 2, annual
    meetings with the CRP partners and stakeholders are used to coordinate
    data collection on a regional level. CRP partners assist the state with the
    development of strategies for restoring water quality and are actively
    involved in implementation solutions.



4                                          TCEQ/TSSWCB joint publication SFR-68/04
               Development of a TMDL or a watershed protection plan (WPP) are the
               first steps of an effective NPS implementation program. The TMDL is the
               scientific basis for the second step, which is the formulation of an
               implementation plan to restore water quality. Where a NPS TMDL has not
               yet been developed and approved or is not yet being developed for an
               impaired water body, a WPP may be developed in the absence of the
               TMDL. The successful implementation of these protection plans will
               largely be dependent on the early participation and involvement of
               stakeholders in the watershed. Participation and involvement of a large
               number of local stakeholders are critical to developing accurate and
               comprehensive data for each plan. Early stakeholder participation and
               buy-in also provides the best possible setting for implementing subsequent
               management strategies called for in the action plans. Chapters 5, 6, and 7
               describe established implementation strategies and activities, regional and
               local programs and best management practices that the state and regional
               agencies use.

               Element 7
               The state identifies federal lands and activities which are not managed
               consistently with state nonpoint source program objectives. Where
               appropriate, the state seeks EPA assistance to help resolve issues.

               As described in Chapter 4, the state has established formal agreements
               with key state and federal agencies to enhance the state’s ability to provide
               a coordinated response to needs identified in priority watersheds.

               Element 8
               The state manages and implements its nonpoint source program efficiently
               and effectively, including necessary financial management.

               The state takes its fiduciary responsibilities, related to the management of
               public funds, very seriously. The TSSWCB and TCEQ have established
               operating procedures and tracking systems to ensure the effective use of
               CWA §319 grant funds for addressing identified water quality problems.
               Both agencies conduct training at the beginning of all projects, with all
               contractors, to review what will be required of them throughout the course
               of the project. Agency staff maintain close contact with project managers
               and provide oversite throughout the course of each project, provide review
               of all invoices, and stay in continuous contact with the EPA project officer
               regarding the status of the program. In order to enhance the efficiency and
               effectiveness of grant management as well as strengthen policies and
               procedures that govern the contracting process, both agencies continually
               review and update contractor performance criteria, invoice review criteria,
               contract manager qualification criteria, and contract shells.

               Element 9
               The state periodically reviews and evaluates its nonpoint source
               management program using environmental and functional measures of


TCEQ/TSSWCB joint publication SFR-68/04                                                   5
        success, and revises its nonpoint source assessment and its management
        program at least every five years.

        The TCEQ and TSSWCB are committed to thoroughly updating the
        state’s Nonpoint Source Management Program every five years. TSSWCB
        and TCEQ Nonpoint Source Program staff will produce and review the
        management program and provide annual updates to the management
        program as necessary to reflect any new activities planned through the
        watershed approach. These updates will serve as the basis for work plans
        with specific targeted output measures that can be reviewed for success at
        the end of the year.

Major Issues Facing Water Quality in Texas
        In response to a favorable climate, adequate water, and a strong economy,
        Texas’ population has shown robust growth since 1900. The forecast is for
        continued moderate growth, with the population nearly doubling to
        36,671,000 residents by 2050. Currently, agricultural irrigation accounts
        for the largest percentage of water use, but as the population continues to
        grow, combined water use by municipalities and industries is projected to
        surpass agricultural usage.

        Physical changes in the environmental landscape can greatly increase the
        amount and effects of NPS pollution. For example, urban growth typically
        results in dramatic increases in the amount of land covered by impervious
        surfaces, such as buildings, roadways, and parking lots. An EPA report on
        coastal NPS pollution (EPA, 1993) identifies many impacts from
        impervious cover. These changes can result in higher runoff volumes,
        increased pollutant loadings, a greater potential for downstream flooding,
        erosion of stream channels, reduced base flows, and reduced groundwater
        infiltration. Urban development also results in modifications to natural
        drainage systems. The loss of wetlands, riparian areas, and stream buffers
        reduces the environment’s natural ability to absorb storm flows and to
        filter contaminants before they reach nearby water bodies.

        Effective state and local management and oversight of decentralized
        wastewater treatment systems are crucial to correcting and avoiding NPS
        problems in many developing areas where On-Site Sewage Facilities
        (OSSFs), or septic tanks, may be the most cost effective option available.
        About 25 percent of the population in the United States depend upon
        decentralized wastewater treatment systems or OSSFs, and these systems
        are expected to be used in almost 40 percent of new development,
        primarily in low-density urban and suburban areas. Results of a survey by
        the Texas On-Site Wastewater Treatment Research Council in 2000
        indicated that 13 percent of OSSFs in Texas were malfunctioning.
        Improved operation and performance of on-site or decentralized systems
        are essential to NPS management.



6                                             TCEQ/TSSWCB joint publication SFR-68/04
                   Possible nonpoint source pollutants associated with agricultural and
                   silvicultural activities include sediment, nutrients, pesticides, organic
                   matter, and bacteria. Sediment, resulting from erosion from cropland,
                   pastureland, rangeland, forest lands and stream banks, fills up ponds and
                   drainage ditches, chokes streams, and fills in estuaries. Sediment can also
                   carry fertilizers and pesticides to surface waters. Excess nutrients and
                   pesticides can also be carried in solution by runoff into surface waters and
                   can seep into groundwater. Nutrients, pesticides, and other pollutants can
                   come from a variety of sources including over-fertilized fields, runoff
                   from improperly managed animal operations and waste applications,
                   inaccurate pesticide sprayer settings, and dozens of other sources. Chapter
                   6 discusses, in greater detail, the problems the state faces with regards to
                   NPS pollution and some of the programs in place to address the issue. The
                   table below lists some of the sources and activities that contribute to NPS
                   pollution.


Table 1.1 Nonpoint Source Pollution: Sources and Activities

 Urban/Suburban Development        Industrial/Commercial Operations   Agricultural Operations

 Impervious Cover                  Impervious Cover                   Pesticides-crops

 Storm Water Runoff                Storm Water Runoff                 Fertilizers-crops

 Construction                      Materials Storage/Handling         Concentrated Animal
                                                                      Feeding Operations
                                                                      (CAFO)

 Roadways and Vehicle Use          Leaks/Spills

 Pesticides: lawns/gardens         Waste Management                   Silviculture

 Fertilizers: lawns/gardens        Air Deposition                     Irrigation

 Septic Systems                    Oil Field Brine Discharges         Wetland and Riparian Loss

 Stream Channelization             Wetland and Riparian Loss

 Wetland and Riparian Loss         Stream/Estuary Modification

 Illegal Dumping



                   Despite the abundance of water available in Texas, it is not uniformly
                   distributed around the State. During recent periods of drought, surface
                   water and groundwater supplies have been nearly depleted in some
                   localized areas. Surface and groundwater supplies have already limited
                   growth and agricultural production in some areas of the state. As the
                   Texas population has continued to grow at a rapid pace, the need to
                   conserve, protect, and restore surface water and groundwater supplies has
                   never been more paramount.

                   The future success of reducing NPS pollution impacts will depend upon a
                   coordinated effort of state and local officials, planners, developers, and

TCEQ/TSSWCB joint publication SFR-68/04                                                           7
    citizens. Technical assistance and outreach to local and regional
    governments is an integral component of urban NPS implementation
    efforts. Land use management decisions are best made in the local arena
    where buy-in by the affected parties is crucial to success. Government
    planners and zoning authorities around the United States are beginning to
    tie together the disciplines of urban planning with the need for water
    conservation, NPS pollution abatement and water quality improvement.

    Other challenges to NPS pollution management in Texas are low public
    awareness of the issues, the size and complexity of the problem, the lack
    of rigorous scientific definition of NPS problems, institutional barriers to
    directing multiple sources of funding to a single problem, and availability
    or lack of awareness of funding sources other than CWA§319(h) grants to
    address the problems or conduct assessment activities. In addition, it is
    difficult, and in some cases impossible, to measure NPS pollution or to
    quantify in-stream load reductions due to NPS implementation activities.

    Because of its diffuse nature, NPS pollution is more difficult and costly to
    characterize and control than point source pollution. The amount and
    variety of precipitation, land use, and geography all determine the effects
    from nonpoint source pollution. The lack of a single identifiable source of
    pollution sometimes makes it difficult to establish specific
    cause-and-effect relationships. In addition, there is a problem of
    cumulative impacts resulting from what may be very small problems at an
    individual source.




8                                          TCEQ/TSSWCB joint publication SFR-68/04
CHAPTER 2 TEXAS' PLAN FOR NONPOINT
SOURCE POLLUTION MANAGEMENT

THE NONPOINT SOURCE PROGRAM
                   Because they cannot be easily distinguished, nonpoint sources of pollution
                   are largely unregulated and a majority of the activities designed to reduce
                   their impact on water quality falls on the states' Nonpoint Source
                   Programs administered under CWA§319. Texas addresses the
                   requirements of CWA§319, to manage nonpoint source pollution in
                   surface and ground water, through the Nonpoint Source Program jointly
                   administered by the TCEQ and the TSSWCB. The TSSWCB administers
                   the Nonpoint Source Program for agricultural and silvicultural NPS
                   management and the TCEQ administers the Nonpoint Source Program for
                   all other nonpoint sources. The CWA§319 Nonpoint Source Program
                   consists of three broad components as defined by §319(a), §319(b) and
                   §319(h). Table 2.1, below, lists those requirements.


Table 2.1 The Nonpoint Source Program

    Assessment Report                     Management                             Grant Program
      CWA §319(a)                          Program                                CWA §319(h)
                                          CWA §319(b)
  Identifies water bodies          Identifies the BMPs and             Outlines application requirements,
  impacted by nonpoint sources     measures to reduce pollutant        including an identification and
  that do not meet water quality   loadings from nonpoint sources.     description of the best management
  standards                                                            practices and measures

  Identifies categories of         Identifies programs* to achieve     Identifies how grant funds will be
  nonpoint sources which add       implementation of the BMPs          allocated
  significant pollution to
  impacted water bodies

  Describes the process for        Includes a schedule with            Identifies priorities for grant funds
  identifying best management      milestones for utilization of the
  practices and measures to        program* implementation
  control nonpoint sources         methods and implementation of
                                   the BMPs

  Identifies and describes State   Identifies sources of federal and   States the requirement for annual
  and local programs for           other assistance and funding and    reporting to the EPA regarding progress
  controlling pollution added      purposes for which it will be       toward milestones and as appropriate,
  from nonpoint sources            used                                reductions in loadings and
                                                                       improvements in water quality

*Programs may include: nonregulatory or regulatory programs for enforcement, technical assistance,
financial assistance, education, training, technology transfer, and demonstration projects.




TCEQ/TSSWCB joint publication SFR-68/04                                                                          9
State Priorities for CWA § 319 Funding
          One of the tools to assist states in NPS management is the CWA§319
          Nonpoint Source grant. Funding is provided to states under CWA§319(h),
          defined in the above chart, to implement its Nonpoint Source Management
          Program. Due to a lack of adequate resources, Texas must establish
          priorities for its CWA§319 grant funding. Highest priority is given to
          funding those projects or activities which address water bodies not
          meeting water quality standards due to NPS pollution, as identified in the
          Texas CWA§303(d) List of impaired water bodies. To ensure fiscal
          responsibility and adequately focus limited resources, the state’s Nonpoint
          Source Program uses the Texas Water Quality Inventory and 303(d) List
          process to establish its priorities (see Chapter 5). Appendices B and C
          represent a listing of the state’s priority water bodies based on the 2002
          Texas Water Quality Inventory and 303(d) List. This list will change as
          the Texas Water Quality Inventory and 303(d) List is updated.

          In addition, Texas will adopt TMDLs in impaired waterbodies identified
          as impacted by nonpoint source pollution in the state's CWA§305(b)
          assessment. The state will facilitate 100 percent of the state-approved
          Implementation Plans developed for NPS TMDLs adopted to eliminate
          significant impacts to water quality from present and future activities to
          the extent practicable under state and federal statutes, programs, and
          resources. Texas will also implement Watershed Protection Plans to
          address NPS water quality issues which, may not have a TMDL
          Implementation Plan to the extent practicable under state statutes,
          programs, and resources. The state will continue to conduct activities to
          prevent the degradation of water quality. The state will also facilitate
          implementation of activities to restore and protect groundwater quality
          where feasible.

          The TCEQ and TSSWCB encourage the participation of all eligible grant
          recipients in the CWA §319(h) grant program. Local participation in the
          program provides the following benefits: improves the quality and
          quantity of information used to identify and develop water quality
          restoration activities, ensures a local perspective in decision making, helps
          stakeholders gain insight into the nature of water quality problems and
          solutions, and promotes local stewardship of water resources through
          voluntary actions to curb or prevent nonpoint source pollution.

Resource Leveraging
          The majority of the State of Texas' annual CWA §319 grant allocation is
          "passed through" to political subdivisions by the TCEQ and TSSWCB
          through the execution of interagency or interlocal contracts. CWA§319(h)
          contractors are considered sub-recipients and, as such, are subject to all
          applicable federal regulations and statutes.




10                                               TCEQ/TSSWCB joint publication SFR-68/04
               For the State's NPS Program to be effective on both a statewide and
               watershed level, the TCEQ and TSSWCB must work closely with other
               state, regional, and local organizations to implement management
               measures and optimize the use of all available resources. The magnitude
               of resources needed to restore beneficial uses and address nonpoint
               sources of pollution is much larger than the amount of funding available
               from the CWA§319(h) grant program. Therefore, the State of Texas NPS
               Program encourages the use of leveraged resources when feasible.

               Federal Match Requirement
               The Nonpoint Source Grant Program requires that federal funds be
               matched forty percent (40%) with non-federal funds. "Match" refers to
               funds or services used to conduct a project that are not borne by grant
               funds. All project match must: (1) relate directly to the project for which
               the match is being applied; (2) be reasonably valued; and (3) be
               supported by documentation. The cost share does not have to originate
               with the grant recipient but can come from individuals, outside
               organizations, other local governments, or state agencies as long as the
               source of the matching funds is non-federal and is not being used to match
               another federal grant program.

               Matching or cost share can be financed in several ways:

               Cash
               These are costs that relate directly to the project for which the match is
               being applied and which are paid by the grant recipient. This is the most
               common method of fulfilling the federal match requirement.

               In-Kind Services
               In-kind services are typically defined as a donation separate from the
               grantee which has a cash value associated with it but may not require a
               cash outlay during the grant period. In-kind contributions may consist of
               the donation of real property, space and equipment, or a donation of time
               or services directly benefitting the grant project and specifically
               identifiable with it. The use of "third-party" or "in-kind" donations to meet
               grant matching requirements is regulated in 40 CFR 30.307, 40 CFR 31.24
               (6) and (7) and is also covered in OMB Circular A. Third party in-kind
               contributions may be necessary to accomplish program activities and are
               allowable under applicable cost principles if the grantee was required to
               pay for them.

Clean Water Act State Revolving Fund
               Another funding tool available to Texas for NPS management is the Clean
               Water Act State Revolving Fund (CWSRF). The Texas Water
               Development Board (TWDB) can provide loans for NPS pollution
               abatement projects through the CWSRF at interest rates lower than the
               market offers. Loans can be made to towns, counties, conservation

TCEQ/TSSWCB joint publication SFR-68/04                                                  11
       districts, and other public agencies, as well as private individuals and non-
       profit organizations. A water quality based priority system is used to rank
       potential applicants and fund projects with the greatest environmental
       benefits. Some of the activities that are eligible for funding include
       agricultural, rural, and urban runoff control, estuary improvement,
       nonpoint source education, wet weather flow control including stormwater
       and sewer overflows that are not associated with a Texas Pollutant
       Discharge Elimination System (TPDES) permit. Repayments on CWSRF
       loans provided from non-federal sources can be used as eligible match to
       CWA §319(h) grant funds.

Partnerships for Conducting Work
       The State primarily uses the infrastructure of the Clean Rivers Program
       (CRP), Soil and Water Conservation Districts (SWCDs), Texas
       Groundwater Protection Committee (TGPC), and the University System to
       coordinate, develop, and implement its NPS Program. These entities are
       each charged with certain water quality stewardship responsibilities and
       can bring a great deal of experience related to research, assessment,
       laboratory analysis, and implementation and education activities. In
       addition, these entities conduct meetings and coordinate activities with a
       variety of local, regional, and state level stakeholders to pursue effective
       solutions to reduce or prevent nonpoint source pollution.

       A group, consisting of nonpoint source stakeholders, was established to
       assist in the preparation and review of the Texas Nonpoint Source
       Pollution Management Program. This stakeholder group was established
       to ensure involvement by local public and private agencies and
       organizations which have expertise in control of nonpoint sources of
       pollution.

Goals for NPS Management
       The state's management program for nonpoint source pollution utilizes
       baseline water quality management programs and regulatory,
       non-regulatory, financial, and technical assistance approaches to achieve a
       balanced NPS management program. Nonpoint source pollution is
       managed through assessment, implementation, and education. The TCEQ
       and TSSWCB have established long and short-term goals and objectives
       for NPS management for guiding and tracking the progress of NPS
       management in Texas. The goals describe high-level guiding principles
       for all activities under the Program. The objectives specify the key
       methods that will be used to accomplish the goals. Success in achieving
       the goals and objectives are reported annually in the State’s NPS Annual
       Report, which is submitted to EPA in accordance with CWA§319(h)(11).
       This report is also available by contacting the TCEQ or TSSWCB or
       visiting their Web sites.



12                                            TCEQ/TSSWCB joint publication SFR-68/04
Long-Term Goal
               The long-term goal of the State of Texas nonpoint source pollution
               program is to protect and restore water quality from nonpoint source
               pollution through assessment, implementation, and education.

               Objectives
               # Focus NPS abatement efforts, implementation strategies, and
                 available resources in watersheds identified as impacted by
                 nonpoint source pollution.
               # Support the implementation of state, regional, and local
                 programs to prevent nonpoint source pollution through
                 assessment, implementation, and education.
               # Support the implementation of state, regional, and local
                 programs to reduce NPS pollution, such as the implementation
                 of strategies defined in state-approved TMDL Implementation
                 Plans and Watershed Protection Plans.
               # Support the implementation of state, regional, and local
                 programs to reduce NPS pollution to groundwater through the
                 Groundwater Protection Strategy, based on the potential for
                 degradation with respect to use.
               # Develop partnerships, relationships, memoranda of agreement,
                 and other instruments to facilitate collective, cooperative
                 approaches to manage NPS pollution.
               # Increase overall public awareness of NPS issues and
                 prevention activities.
               # Enhance public participation and outreach by providing forums
                 for citizens and industry to contribute their ideas and concerns
                 about the water quality management process.

Short-Term Goals and Milestones

               Goal One - Data Collection and Assessment
               Coordinate with appropriate federal, state, regional, and local entities,
               private sector groups, and citizen groups and target CWA §319(h)grant
               funds towards water quality assessment activities in high priority,
               nonpoint source-impacted watersheds, vulnerable and impacted aquifers,
               or areas where additional information is needed.

               Objectives
               Evaluate the condition of the State’s water bodies, on a biennial basis, and
               prepare a report containing this evaluation, as required by CWA§305(b) to
               determine: a) water bodies not meeting water quality standards due, at
               least in part, to nonpoint source pollution, and; b) the cause of the
               impairment.


TCEQ/TSSWCB joint publication SFR-68/04                                                 13
        !   Identify surface waterbodies and aquifers from the Texas
            Water Quality Inventory and 303(d) List and Joint
            Groundwater Report that need additional information to
            characterize non-attainment of designated uses and quality
            standards. This information is used during annual
            coordinated monitoring meetings and during special project
            planning to focus on high priority waters.
        !   Ensure that monitoring procedures meet quality assurance
            requirements and are in compliance with EPA-approved
            TCEQ and/or TSSWCB Quality Management Plans.
        !   Conduct special studies to determine sources of NPS
            pollution and gain information to target TMDL activities
            and BMP implementation.
        !   Develop and adopt, at the state level, TMDLs,
            Implementation Plans and Watershed Protection Plans to
            maintain and restore water quality in waterbodies identified
            as impacted by NPS pollution.
        !   Conduct monitoring to determine effectiveness of TMDL
            Implementation Plans, Watershed Protection Plans, and
            BMP implementation as appropriate.

     Goal Two - Implementation
     Coordinate and administer the NPS program to support the
     implementation of TMDL Implementation Plans and/or Watershed
     Protection Plans and other state, regional, and local plans/programs to
     reduce NPS pollution. Manage all CWA§319 grant funds efficiently and
     effectively to target implementation activities to the areas identified as
     impacted, or potentially degraded with respect to use by NPS pollution.

     Objectives
     Prevent and reduce NPS pollutant loadings in the surface water bodies,
     groundwater aquifers, wetlands, and coastal areas, through the execution
     of TMDL implementation Plans, Watershed Protection Plans,
     recommendations from the Joint Groundwater Monitoring and
     Contamination Report, the Groundwater Protection Strategy, and various
     agricultural / silvicultural activities.

        ! Work with regional and local entities to determine priority
          areas and develop and implement strategies to address NPS
          pollution in those areas.
        ! Develop and implement BMPs to address constituents of
          concern or water bodies not meeting water quality
          standards in watersheds identified as impacted by NPS
          pollution.
        ! Develop and implement BMPs to address NPS
          constituents of concern or water bodies not meeting water


14                                         TCEQ/TSSWCB joint publication SFR-68/04
                     quality standards in aquifers identified with impacts or as
                     vulnerable in the latest state approved Texas Water Quality
                     Inventory and 303(d) List or in Chapter 5 of this document.
                   ! Implement state-approved TMDL Implementation Plans
                     and Watershed Protection Plans developed to restore and
                     maintain water quality in water bodies identified as
                     impacted by nonpoint source pollution.

               Goal Three - Education
               Conduct education and technology transfer activities to help increase
               awareness of NPS pollution and prevent activities contributing to the
               degradation of water bodies, including aquifers, by NPS pollution.

               Objectives
               Reduce the amount of NPS pollution entering the water bodies of Texas
               through pollution prevention activities and education.

                   !   Enhance existing outreach programs at the state, regional,
                       and local levels to maximize the effectiveness of NPS
                       education.
                   !   Administer programs to educate citizens about water
                       quality and their potential role in causing NPS pollution.
                   !   Where applicable, expedite development of technology
                       transfer activities to be conducted upon completion of BMP
                       implementation.
                   !   Conduct outreach through the Clean Rivers Program, Texas
                       Cooperative Extension, Soil and Water Conservation
                       Districts, and others to facilitate broader participation and
                       partnerships. Enable stakeholders and the public to
                       participate in decision-making and provide a more
                       complete understanding of water quality issues and how
                       they relate to each citizen.
                   !   Implement outreach activities identified in the Texas
                       Groundwater Protection Strategy to prevent NPS impacts
                       to groundwater.
                   !   Implement public outreach and education to maintain and
                       restore water quality in waterbodies impacted by NPS
                       pollution.

               The long-term goal will remain the goal of NPS management as long as
               nonpoint source water pollution is an issue. Short- term goals will be
               examined every five years. Measurement of the goal achievement
               progress, within the priority water bodies, will be reported on an annual
               basis in the State's NPS Annual Report. The TCEQ and the TSSWCB will
               evaluate the management program, on an annual basis, to determine a
               need for revision and revise the document at least every five years.

TCEQ/TSSWCB joint publication SFR-68/04                                                15
     Milestones
     Water bodies with completed TMDLs, those undergoing current TMDL-
     work, and water bodies currently implementing Watershed Protection
     Plans have been listed in Appendix C, in table format, in order to gauge
     progress, through a time line, against the detailed milestones that are
     included below and in the first column of each table within the appendix.


     # Employ or develop a local Watershed Committee to solicit
       input and encourage the participation of affected stakeholders
       in the decision-making process.
     # Complete the assessment of pollutant problems by reviewing
       existing water quality data, conducting an inventory of point /
       nonpoint sources, land use data, and all known stressors
       influencing water quality.
     # Complete water quality monitoring. Analyze data, assess
       loadings, and determine the origin and distribution of
       pollutants.
     # Develop and apply model(s) to determine numerical load
       allocations. Recommend control strategies for implementation.
     # Develop a detailed action plan (TMDL, IP, or WPP) which
       establishes overall goals and objectives, load allocation,
       strategy for load allocation, timetable for implementation, and
       a list of expected results.
     # Implement voluntary and regulatory actions in the watershed
       and adust the BMP implementation based on follow-up
       verification monitoring of effectiveness.

     The programs discussed throughout this document are responsible for NPS
     management and implementation of the goals, objectives, and milestones.
     Nonpoint source management must be a coordinated effort to be
     successful. Therefore, the goals and milestones are over-arching for all
     nonpoint source programs of Texas.




16                                        TCEQ/TSSWCB joint publication SFR-68/04
CHAPTER 3 TEXAS' WATERSHED APPROACH
                The watershed approach described in this chapter provides an overview of
                Texas’ management strategy for surface water quality. Some of the topics
                in this chapter are covered in more detail in other parts of this document.

                In order to protect water quality, we must define and measure it, identify
                the types and sources of pollution, and implement plans to protect or
                restore it. Under the federal Clean Water Act, Texas and other states must
                establish standards that describe how the water bodies are used, and carry
                out a program to regularly monitor the status of water quality against those
                standards. Texas uses several strategies to protect water quality, such as
                issuing permits for discharges to streams and lakes, or devising watershed
                protection plans with local stakeholders. When these protective strategies
                are not sufficient to keep surface water bodies clean enough to be used in
                ways that meet the standards for them, the state takes action to restore
                water quality.


A WATERSHED APPROACH
                By looking at a watershed—the geographic area that drains to a common
                body of water—Texas can evaluate all the sources of pollution that may
                be affecting water quality. This approach is used to identify water quality
                problems and issues, to establish statewide and local water quality
                priorities, to develop community-based solutions, and to cooperate with
                local stakeholders to implement those solutions. The watershed approach
                is based on four basic principles:

                                      # geographic focus based on hydrology
  A watershed is a geographic
  area in which water, sediments,
                                        rather than political boundaries
  and dissolved materials drain       # water quality-based objectives based on
  into a common outlet. This            scientific data
  outlet could be a stream, lake,
  playa, estuary, or ocean.           # coordinated priorities and integrated
  Watersheds are also commonly          solutions
  called basins or drainage areas.    # diverse, well-integrated partnerships
  Everything that is done in a
  watershed can affect the quality    These principles guide all activities of the TCEQ
  of the receiving water body.        water quality programs. They provide the framework
                                      for coordinating people and activities to achieve the
                                      state’s clean water goals.

                Protecting our lakes, bays, and streams is a complex process—not only in
                terms of the number of sources of pollution and the variety of water body
                types and interactions, but also in the number of people that must be
                involved. Using a watershed approach, we often find that problems seen at



TCEQ/TSSWCB joint publication SFR-68/04                                                  17
                one point in a stream or lake are caused further upstream. With this in
                mind, we identify and remedy water quality problems at their source.

Managing Surface Water by Geographic Area
                Texas uses the major watersheds—or river and coastal basins—of the state
                as the geographic units around which it builds its watershed approach to
                managing surface water quality.


                                           Classifying Waters
 Surface waters in the state include
 lakes, bays, ponds, impounding            by Geographic Area
 reservoirs, springs, rivers, streams,
 creeks, estuaries, wetlands,              Because of the vast extent of surface waters in
 marshes, inlets, canals, the Gulf of      Texas, and the ecological diversity of the state,
 Mexico inside the territorial limits of   the major rivers, lakes, and estuaries have been
 the state, and all other bodies of        subdivided and assigned tracking numbers, called
 surface water, natural or artificial,
 inland or coastal, fresh or salt, navi-
                                           classified segments. The classified segments are
 gable or non-navigable. This              given numbers that correspond to the major river
 includes the beds and banks of all        basin in which they are located.
 water-courses and bodies of surface
 water that are wholly or partially        For example, the Brazos River, one of the state’s
 inside or bordering the state or sub-
 ject to the jurisdiction of the state;    longest rivers, has been divided into 57 separate
 except that waters in treatment sys-      segments and designated as Basin 12. Many lakes
 tems that are authorized by state or      also lie within the Brazos River basin, and are
 federal law, regulation, or permit,       given segment numbers. All the segment numbers
 and that are created for the purpose
                                           have four digits—the first two indicate the basin
 of waste treatment are not consid-
 ered to be water in the state.            number, and the second two indicate the specific
                                           segment. For example, Segment 1210 is Lake
                                           Mexia in the Brazos River Basin; Segment 1427 is
                                           Onion Creek in the Colorado River Basin.

                The areas of the classified segments are defined in the Texas Surface
                Water Quality Standards. Most of the perennial (always flowing) rivers in
                the state, and lakes and estuaries with large areas, are classified. Figure 3.1
                shows the state’s major rivers and coastal basins, and the basin numbers
                assigned to them.

                However, not all bodies of water in Texas are classified in the Standards.
                For example, when managing a classified segment of the Brazos River, it
                may be necessary to examine water quality in the tributaries that flow into
                that segment—which are part of the segment’s watershed. Some of these
                tributaries may not be part of the classified segment system. When that
                happens, for management purposes, the tributary is assigned a tracking
                number, which is referred to as an unclassified segment.




18                                                      TCEQ/TSSWCB joint publication SFR-68/04
               This unclassified tributary will be assigned the number of the classified
               segment in whose watershed it resides, along with a letter. For instance,
               Segments 1806A, 1806B, and so on. The same numbering system applies
               to unclassified lakes. Both classified and unclassified segments are
               referred to generically as segments. The term water body is used to refer to
               entire rivers, reservoirs, or estuaries.




TCEQ/TSSWCB joint publication SFR-68/04                                                 19
Figure 3.1 Major River Basins and Planning Areas in Texas
                                                            20
The Water Quality
Management Cycle
               The water quality management cycle is the process through which the
               state works with other organizations and with local residents who have a
               stake in water quality. This approach is used to continuously identify
               water quality problems, to establish statewide and local water quality
               priorities, to develop community-based solutions, and to collaborate with
               local stakeholders to implement those solutions.

                                                                Because environmental
                                                                planning and
                                                                implementation are rarely
                                                                one-time activities, the
                                                                water quality
                                                                management cycle has
                                                                five phases that are
                                                                repeated regularly
                                                                (Figure 3.2). This
                                                                iterative cycle reflects the
                                                                dynamic nature of
                                                                watershed management.

                                                                A successful
                                                                 management framework
                                                                must be flexible enough
                                                                to accommodate this dy-
                                                                namic nature in an
                                                                orderly manner over
                                                                time.

                                                                Figure 3.2 demonstrates
                                                                the dynamic nature of
                                                                this cycle and the major
                                                                steps in the process of
                                                                managing the quality of
Figure 3.2. The Water Quality Management Cycle                  the state’s surface waters.



               Managing water quality through a watershed approach requires an
               ongoing cycle of tasks:

                   !   Standards and Planning: setting standards for surface water
                     quality and revising or formulating monitoring plans;
                   ! Monitoring: collecting data to monitor the condition of
                     surface waters;


TCEQ/TSSWCB joint publication SFR-68/04                                                 21
          !   Assessment and Targeting: assessing data to determine
            water quality status and to identify any impairments;
          ! Developing Strategies: for protecting, improving, or
            restoring water quality with pollutant source controls and
            practices; and
          ! Implementing Pollution Controls: for both point and non-
            point sources and evaluating progress, which may lead
            back to revising those plans or formulating new ones.


Standards and Planning
       Water quality standards are the foundation for managing surface water
       quality. A water quality standard is the combination of:

          ! a designated use and
          ! the criteria necessary to attain and maintain that use


       Standards define the goals for a body of water. The uses prescribe the
       purposes for which the water should be fit—such as recreation, support of
       aquatic life, or drinking water supply.

       Five general categories for water use are defined under the Texas Surface
       Water Quality Standards:

          !   aquatic life use
          !   contact recreation
          !   public water supply
          !   fish consumption
          !   general uses

       The criteria define the instream conditions necessary to support those
       uses. Criteria are either:

          ! numeric—a limit on the amount of a certain pollutant that a
            water body may contain; or
          ! narrative—a prohibition on a certain condition in the water,
            such as color, odor, or turbidity.

       Water quality standards are the basis for :

          ! evaluating monitoring data to see if water quality is being
            maintained,
          ! setting levels of treatment for permitted wastewater
            discharges, and



22                                            TCEQ/TSSWCB joint publication SFR-68/04
                     !   establishing water quality targets to set total maximum
                         daily loads of pollutants.

                Some standards are applied generally to many different water bodies,
                while some are site-specific. Any one water body will usually have
                multiple uses designated for it. For example, a lake or stream may be
                designated for use as a source of drinking, for recreation, and as a healthy
                environment for fish and other aquatic organisms.

                The standards also define an antidegradation policy that protects existing
                uses and the state’s highest quality waters. The complete Texas Surface
                Water Quality Standards are available in Title 30 of the Texas
                Administrative Code (TAC), Chapter 307.

                                              The standards assign specific uses for most
  Water quality standards are the             medium to large water bodies, and general
  foundation for managing surface water       uses for all water bodies. For example, Possum
  quality. A standard consists of two         Kingdom Lake must meet requirements for the
  parts:                                      specific uses of public water supply,
  !   a use, or the purposes for which        swimming and other recreation, and a high
      surface water will be used; and         quality environment for fish and other aquatic
                                              species. Each use defined in the standards is
  !   criteria, or the indicators that will   linked to measurements for specific conditions
      be used to determine if the use is
                                              or pollutants. These measurements are used to
      met.
                                              evaluate whether water quality is good enough
  Uses and criteria are paired to set the     to maintain its designated uses.
  standards for water quality. For
  example, one use is habitat for fish and    Other basic uses — such as navigation,
  other aquatic organisms. It is called the
  "aquatic life use" in the standards.        agricultural water supply, and industrial water
  Criteria used to determine whether the      supply — are applicable to all water in the
  aquatic life use is met may include how     state where they can be achieved.
  much dissolved oxygen is present in
  the water, how much water flows
                                              Some indicators of water quality, such as the
  through a stream and how deep it is,
  and how diverse the population of           narrative requirements in the general criteria,
  aquatic organisms.                          are intended to protect multiple uses and
                                              aesthetic conditions.

Aquatic Life
                Standards associated with the aquatic life use are designed to protect plant
                and animal species that live in and around the water. Some pollutants or
                conditions that may result in harm to aquatic species include low levels of
                dissolved oxygen or the presence of toxic substances such as metals or
                pesticides in water. Because oxygen is necessary to support life, its
                concentration in water is an easy-to-measure characteristic that generally
                reflects the ability of a water body to support a healthy, diverse aquatic
                population. Other important indicators of suitability for the aquatic life use
                include concentrations of substances that can be toxic, such as certain


TCEQ/TSSWCB joint publication SFR-68/04                                                     23
         metals—like selenium, mercury, and zinc, and some toxic organic
         pollutants—such as pesticides and some industrial chemicals).

Contact Recreation
         The standard associated with the contact recreation use is designed to
         ensure that water is safe for swimming or other water sports that involve
         direct contact with the water, especially with the possibility of ingesting it.
         High concentrations of certain bacteria in water indicate that there may be
         a risk of becoming ill from recreational activities. Though it is possible to
         swim in water that does not meet this standard without becoming ill, the
         probability of becoming ill is higher.

Public Water Supply
         Standards associated with the public water supply use indicate whether
         water from a lake or river is suitable for use as a source for a public water
         supply system. Source water is treated before it is delivered to your tap; a
         separate set of standards governs treated drinking water. Indicators used
         to measure the safety or usability of surface water bodies as a source for
         drinking water include the presence or high concentrations of substances
         such as pesticides or some metals. Concentrations of dissolved minerals,
         such as sulfate or chloride, are also measured, since treatment to remove
         high levels of minerals from drinking water may be expensive. Too many
         dissolved minerals in drinking water may cause a disagreeable taste, odor
         or color, even after it is treated by public water supply organizations.

Fish Consumption
         Standards associated with the fish consumption use are designed to protect
         people from eating fish or shellfish that may be contaminated. These
         standards identify levels at which certain toxic substances dissolved in
         water may accumulate in the tissue of aquatic species. In addition, fish
         tissue is examined for accumulated toxins to determine the risk to human
         health from consuming fish or shellfish. If significant risk is identified,
         the Texas Department of Health issues advisories for such water bodies
         that restrict or limit consumption of fish taken from them. The standards
         also specify limits on bacteria levels in marine waters to ensure that
         oysters or other shellfish are safe for public sale and consumption.

Monitoring
         Water quality data are gathered regularly to monitor the condition of the
         state’s surface waters. For example, chemical, physical, biological,
         hydrological, hydraulic, and land use data are collected by the TCEQ, the
         regional agencies of the Clean Rivers Program, and other organizations,
         such as state and federal agencies, educational institutions, volunteer
         monitoring groups, and private organizations under contract to the state.
         Monitoring plans are guided by quality assurance project plans (QAPPs)


24                                               TCEQ/TSSWCB joint publication SFR-68/04
               that ensure that data are collected according to generally accepted
               practices and are of sufficient quality to be used in making scientific
               assessments and management decisions.

               Texas conducts five main types of data collection to monitor the status of
               water bodies:

                   !   routine monitoring
                   !   systematic monitoring
                   !   targeted monitoring
                   !   permit support monitoring
                   !   effectiveness monitoring

               Routine monitoring is designed to assess the status and trends of overall
               water quality throughout the state, and for each river basin. Data are
               collected using a monitoring network of key sites on the major water
               bodies in each basin on a regular basis. Monitoring sites may also include
               smaller water bodies to support characterization of ecoregions and/or
               basin-specific conditions.

               Systematic monitoring focuses on evaluating subwatersheds and
               unclassified water bodies. Its purpose is to investigate and detect areas of
               concern, and isolate issues that require further study. It also includes
               monitoring at sites to check the status of water bodies (identify
               improvements or concerns). This monitoring strategy rotates resources
               around the river basin to gather information on water bodies that would
               not normally be included in the routine monitoring program.

               Targeted monitoring is conducted on water bodies where there is reason
               to believe there is a threat or a concern for water quality, to establish the
               extent and degree of an impairment, or to determine the best strategy for
               restoring water quality. Sometimes called special studies, targeted
               monitoring activities usually involve intensive periods of data collection at
               sites where routine or systematic monitoring identified impacts, concerns,
               or impaired uses.

               Permit support monitoring is used to address specific areas where
               additional information is need to support the development of permits that
               allow wastewater discharges. This may include studies to gather site-
               specific information for use in developing permits.

               Effectiveness monitoring is conducted to evaluate whether management
               practices, regulatory measures, and watershed improvement and
               restoration plans are producing the desired results.

               The CRP plays a key role in the TCEQ’s yearly integration of these
               various monitoring needs into a coordinated monitoring schedule for the


TCEQ/TSSWCB joint publication SFR-68/04                                                  25
          entire state. The schedule shows all surface water monitoring being
          conducted by the TCEQ or under its contracts or cooperative agreements
          for each planning year. It does not include coordination of monitoring by
          wastewater dischargers that is reported to the state as a condition of their
          permits.

          Planning and development of the coordinated monitoring schedule takes
          place from January through May preceding the state fiscal year for which
          the plan is developed. To support coordinated monitoring, the TCEQ has
          developed guidance for selecting sites and for sampling methods for
          routine, systematic, and targeted monitoring. The coordinated monitoring
          schedule is hosted by the Lower Colorado River Authority, a CRP agency,
          on its Web site at http://cms.lcra.org/.

Coordination of
State and Regional Priorities
          The TCEQ works in partnership with the Texas Clean Rivers Program
          (CRP) to set regional priorities for protecting and improving the state’s
          surface waters. The CRP brings together state, regional, and federal
          agencies to:

             !   eliminate duplication in monitoring surface water quality
                 and thereby leverage resources;
             !   support data sharing and quality assurance by creating
                 uniformity in methods;
             !   establish regional stakeholder forums to involve the public
                 in identifying, prioritizing, and managing local water
                 quality issues;
             !   set priorities and schedules for monitoring; and
             !   identify problems and preventive or remedial measures.

          To support those goals and the TCEQ’s overall water quality management
          program, the CRP’s long-term action includes nine key methods:

             !   Ensure efficient use of public funds.
             !   Enhance public participation and outreach.
             !   Encourage comprehensive and cooperative watershed
                 planning.
             !   Maintain basin-wide water quality monitoring programs.
             !   Develop and maintain a river basin water quality database
                 clearinghouse.
             !   Provide quality-assured data to the TCEQ for use in water
                 quality decision-making.
             !   Focus on priority issues and address local initiatives.



26                                               TCEQ/TSSWCB joint publication SFR-68/04
                      ! Identify, analyze, and report on water quality issues and
                        potential causes of pollution.
                      ! Identify and evaluate alternatives for preventing and
                        reducing pollution.

               Through its activities, the CRP plays a vital role in ensuring clean, useable
               water supplies for Texas. The partner agencies for the CRP, and the
               regions for which they are responsible, are shown in Figure 3.1.

Assessment and Targeting
               Every two years, the states must assess the quality of their water and target
               those water bodies for which additional data collection or restoration
               efforts are required. This information is submitted to the U.S.
               Environmental Protection Agency (EPA) in a report that details the extent
               to which each water body in the state meets water quality standards. The
               TCEQ publishes this biennial assessment as the Texas Water Quality
               Inventory and 303(d) List.

                          In the past, Texas published two different reports, often referred
 Assessment is the        to as the 305(b) Report and 303(d) List, after the sections in the
 evaluation of data       Clean Water Act that describe the requirements of the assessment.
 and information          Since 2002, both reports have been published as one document, in
 against a set of         accordance with guidance from the EPA. The document still has
 standards or
 benchmarks.
                          essentially two main parts: the Inventory, which gives the status
                          of all the waters in the state, and the 303(d) List, which identifies
                          waters that do not meet one or more of the standards established
                          to ensure the beneficial use of the water body.

The Inventory
               The Inventory describes the status of all surface water bodies of the state
               that were evaluated for the given assessment period. The TCEQ uses data
               collected during the most recent five-year period in making its assessment.
               The data are gathered by many different organizations that all operate
               according to approved quality control guidelines and sample collection
               procedures. The quality of waters described in the Inventory represents a
               snapshot of conditions during the time period considered in the
               assessment. Water quality is dynamic and constantly changing.

               The assessment guidance is based on a set of methods that apply the
               surface water quality standards and criteria. These methods are developed
               by the TCEQ with the advice of a diverse group of stakeholders, and are
               made available to partner organizations and stakeholders every two years,
               prior to the biennial assessment in which they will be used.




TCEQ/TSSWCB joint publication SFR-68/04                                                     27
The 303(d) List
          The 303(d) List is an important management tool produced as part of the
          assessment. It identifies waters for which preventive measures have not
          been sufficient to achieve water quality standards. The 303(d) List is
          subject to review and approval by the EPA.

          When a water body is identified on the 303(d) list, certain new
          requirements may apply for facilities that discharge wastewater into the
          listed water body. Importantly, the TCEQ may not allow any new or
          expanded discharges of a listed pollutant into a Category 5 water body if it
          contributes to the impairment. Other possible effects on permits that may
          result from a restoration plan for the water body include:

             !    TCEQ may initiate amendments to impose new limits, or
                  may impose them with routine renewals or amendments.
             !    Permitted loading from existing facilities may be
                  substantially reduced.
             !    New facilities may be required to meet more stringent
                  effluent limits than expected.
             !    In some cases or areas, storm water permits may receive
                  new or more stringent limits.
             !    Dischargers may no longer be eligible for general permits.
             !    Additional monitoring and reporting requirements may be
                  added.

          Additional nonpoint source management practices may also be required,
          such as:

             ! Management of runoff by such means as detention basins,
               filter strips, infiltration basins, porous pavement, retention
               ponds, and swales.
             ! Management of operations to decrease or eliminate
               pollutants in runoff, such as spill prevention and control,
               source controls, and education.

Categories Indicate Water Quality Status
          The Inventory assigns each assessed water body to one of five categories
          to provide information to the public, the EPA, and internal agency
          programs about water quality status and management activities (see Table
          1). The categories indicate the status of the water body, and how the state
          will approach identified water quality problems.

          Higher category numbers correspond to higher levels of effort required to
          manage water quality. For example, water bodies in Category 5 constitute
          the 303(d) List, and require remedial action by the state to restore water


28                                              TCEQ/TSSWCB joint publication SFR-68/04
                quality. For water bodies in Category 5a, the state must develop a
                scientific model called a total maximum daily load (TMDL) and a plan to
                implement it (these are discussed in more detail in the section “Restoring
                Water Quality”). Water bodies in Category 1 are meeting all their uses,
                and require routine monitoring and preventive action.

             Table 3.1     Categories of Use Attainment in the Water Quality Inventory
              Category 1                  Attaining all water quality standard and no use is threatened.

              Category 2                  Attaining some of the designated uses; no use is threatened; and
                                          insufficient or no data and information are available to determine if the
                                          remaining uses are attained or threatened.

              Category 3                  Insufficient or no data and information to determine if any designated
                                          use is attained.

              Category 4                  Standard is not supported or is threatened for one or more designated
                                          uses but does not require the development of a TMDL.

                       Category 4a        TMDL has been completed and approved by EPA.


                       Category 4b        Other pollution control requirements are reasonably expected to result
                                          in the attainment of the water quality standard in the near future.

                       Category 4c        Nonsupport of the water quality standard is not caused by a pollutant.

              Category 5                  Category 5 is the 303(d) list. The water body does not meet applicable
                                          water quality standards or is threatened for one or more designated uses
                                          by one or more pollutants.

                         Category 5a      A TMDL is underway, scheduled, or will be scheduled.


                         Category 5b      A review of the water quality standards will be conducted before a
                                          TMDL is scheduled.

                         Category 5c      Additional data and information will be collected before a TMDL or
                                          review of the water quality standard is scheduled.



                                                Further, these categories must be applied to each
  Impairment                                    combination of designated use and the parameter
  The combination of one designated             (pollutant or condition of concern) that determines
  use with one pollutant or condition           support of beneficial uses. The combination of the
  of concern.                                   use with the parameter is called an impairment.
  Parameter
                                                For example, the concentration of dissolved
  A pollutant or condition affecting a          oxygen is one of the criteria used to determine the
  body of water; also, a criterion used         support of the aquatic life use. If dissolved oxygen
  to measure attainment of a particu-           concentrations are too low, one impairment would
  lar use. Examples include low dis-            exist for the water body under examination.
  solved oxygen concentrations, a
  particular metal such as zinc, or a
  particular pesticide such as DDT.             Since a water body has multiple uses, it may fall
                                                into different categories for different uses. In that


TCEQ/TSSWCB joint publication SFR-68/04                                                                           29
         case, the overall category for the water body is the one with the highest
         category number.

         For example, Spring Creek, Segment 1008 in the San Jacinto River Basin,
         does not support the contact recreation use (Category 5c) nor the aquatic
         life use (Category 5b). It supports the public water supply and general
         uses, and the fish consumption use has not been assessed. The designation
         for the entire water body is Category 5b, since that is the highest category
         associated with any one of its uses.

Ranking Category 5a Segments
         After the draft 303(d) List is compiled, the TCEQ assigns a rank of High,
         Medium or Low to each impairment (see Table 3.1) of Category 5a
         segments. This rank is used in determining the priority for implementing
         TMDLs. The rank is based on criteria such as the degree to which the
         water quality standard is exceeded, and the level of public concern (as
         judged, in part, by the interest of local groups). Comments are accepted
         during the public review period and changes may be made as a result of
         public comment.

         Factors considered in the ranking include:

            !   whether the impairment affects human health
            !   proximity of one impaired segment to others that have
                similar or related pollutants
            !   local and regional support for TMDL development
            !   data availability for immediate TMDL development
            !   similarity of the strategies and actions needed to address
                impairments

         The specific criteria and point system used for scheduling waters for
         TMDL development is shown in Table 3.1.

Scheduling Management Activities for Listed Waters
         The amount of time it takes to address a listed segment varies greatly. In
         some cases, a segment may be addressed within one to three years of its
         listing; in other cases, several years may be needed.

         Several factors influence the scheduling of management activities for all
         three categories (5a, 5b, and 5c) of the list, such as the number of
         successive years a segment has been on the list, scheduled permit
         renewals, or administrative demands. Available funding ultimately
         determines how many new restoration or management projects will be
         initiated annually.




30                                             TCEQ/TSSWCB joint publication SFR-68/04
                   Schedule for TMDL Development
                   The TCEQ is committed to beginning development of TMDLs for all
                   segments in Category 5a within 10 years of their initial listing. In
                   compliance with the federal regulations, the TCEQ prepares a schedule
                   after each Water Quality Inventory is completed that identifies the
                   TMDLs that will be initiated within the next two years.

                   The most important factor in determining the schedule is the priority
                   ranking assigned to each impairment. Others factors include additional
                   data or information gathered since the listing and ranking, and the
                   availability of funding. The TMDL schedule is submitted to the EPA in
                   April of even-numbered years along with the 303(d) List.

Table 3.2 Criteria for Prioritizing TMDLs (Category 5a Waters) for Development
 1.   The pollutant causing the impairment is a:                                                      Points

      A.   Threat to human health                                                                      50
           Includes nonsupport of the following uses: public water supply, contact recreation, fish
           consumption, oyster waters.

      B.   Threat to aquatic life                                                                      30
           Includes nonsupport of the following uses: aquatic life, general, and narrative criteria

      C.   Threat to both human health and aquatic life                                                30

 2.   Watershed proximity, related pollutants, and the ease of incorporating a newly identified       Points
      parameter of nonsupport into an existing project.

      A.   Ongoing TMDL in the same segment for a different pollutant                                  10

      B.   Ongoing TMDL in the same segment watershed for the same pollutant                           20

      C.   Ongoing TMDL in the same segment watershed for a different pollutant                        10

      D.   Ongoing TMDL in a contiguous watershed for the same pollutant                               10

      E.   No ongoing TMDL in the same segment or contiguous watershed                                  0

 3.   Data availability for TMDL development                                                          Points

      A.   Ongoing modeling activities in the segment                                                  10

      B.   Recent targeted data collection activities within the segment, other than routine           10
           monitoring

      C.   TMDL tools still in development (for example, bacteria source tracking, mercury)            -30

 4.   Local and regional support for TMDL development                                                 Points

      A.   River Authority and/or Council of Government active in current or recent TMDL project       20

      B.   TSSWCB or other state agency active in current or recent project                            20

      C.   Dedicated regional staff are available in TCEQ region of the project                        10

      D.   Positive stakeholder interest within the segment watershed                                  10



TCEQ/TSSWCB joint publication SFR-68/04                                                                        31
     E.   Strong opposition to the project                                                        -10

5.   Year of listing: under the commitment by TCEQ leadership in 1997 to begin                   Points
     development of TMDLs within 10 years of listing, water bodies listed earlier have a
     higher priority. If original listing year is:

     A.   1998                                                                                    50

     B.   2000                                                                                    40

     C.   2002                                                                                    30

     D.   2004                                                                                    20

     E.   2006                                                                                    10

6.   Best available funding information, with first priority given to ongoing projects. If       Points
     project status is:

     A.   > 50% complete                                                                          50

     B.   < 50% complete                                                                          20

     C.   New project                                                                              0

     Total Points          Priority
     < 80                  Low
     90-160                Medium
     > 160                 High




Strategies for Protecting and Improving
Water Quality
                  At all times, the TCEQ is protecting water quality through various
                  programs. Just the act of monitoring and assessing water quality is a form
                  of protection, since it informs state officials and the public about the status
                  of Texas rivers, lakes, and estuaries and about water quality management
                  needs. More water bodies are being assessed each year, leading to more
                  timely identification of problems. But much more is being done on a
                  regular basis—such as issuing permits that limit pollutant discharges to
                  protect rivers, lakes, and bays, developing plans to protect sources of
                  drinking water, and educating people about water quality issues.

                  The TCEQ’s pace and progress in addressing impairments on the 303(d)
                  list has risen sharply over the past five years. More TMDLs are being
                  developed and implemented. The water quality standards were revised in
                  2000, and numerous analyses are being conducted to determine whether
                  the currently defined uses are attainable at specific sites. In addition, other
                  studies are underway to further improve the existing standards. More data
                  are gathered each year to ensure that we have as sound a basis as possible
                  for establishing existing and new controls. The TCEQ water quality
                  programs strive at all times to provide accurate assessment, and to

32                                                                 TCEQ/TSSWCB joint publication SFR-68/04
               continually improve the tools and information used to manage water
               quality.

Permits to Protect Water Quality
               The TCEQ issues permits that control discharges of wastewater into the
               surface waters of the state. Many types of discharges are regulated, such
               as the effluent from industries, domestic wastewater from city treatment
               plants, discharges from certain agricultural operations, and the storm
               water that runs off urban areas. The TCEQ also requires pretreatment
               permits for some wastewater treatment plants that are publicly owned.

               The owners and operators of these facilities, called dischargers or permit-
               tees, are responsible for using the best technologies that are both available
               and practical to reduce pollutants in the effluent from their facilities. Many
               different kinds of pollutants are regulated by permit, including metals,
               pesticides, organic compounds, and treated human waste. Permit limits on
               the emission of pollutants into the air may also prevent water pollution,
               since pollutants in the air can settle into creeks and lakes. However, this
               issue is very complex, and scientists currently do not have a good
               understanding of how to control water pollution from air deposition.

               The TCEQ works to conserve potable water sources through permits that
               regulate the recycling, beneficial reuse, and disposal of sludge. Sludge is
               the muddy solid waste produced during the water and sewage treatment
               processes. Texas’ federal and state requirements for wastewater and
               sludge permitting are codified in the Texas Administrative Code.

               The TCEQ also protects wetlands and other surface waters through its
               certification of federal permits that regulate the discharge of dredge or fill
               material into the waters of Texas. The state’s certification that federal
               dredge and fill activities will not degrade wetlands or other surface waters
               is required under Section 401 of the federal Clean Water Act. The U.S.
               Army Corps of Engineers issues dredge and fill permits after certification
               by the TCEQ.

               The TCEQ’s wastewater and sludge permitting activities are required
               under Section 402 of the federal Clean Water Act, and implemented
               federally through the National Pollutant Discharge Eliminations System.
               In 1998, the TCEQ was authorized by the EPA to issue Section 402
               permits on behalf of the federal government, with the exception of
               discharges associated with oil, gas, and geothermal exploration and
               development activities, which are regulated by the Railroad Commission
               of Texas. The TCEQ combined its state-issued wastewater permits with
               the federal permits that were delegated to it under the Texas Pollutant
               Discharge Elimination System.




TCEQ/TSSWCB joint publication SFR-68/04                                                   33
     Protecting Stream Flows
     Water availability is an issue in Texas due to the increasing difficulty of
     meeting the needs of people, industry, wildlife, and habitats. Across the
     state, naturally occurring periods of low water availability are exacerbated
     by the increases in human population and in activities that require water.
     According to the State Water Plan published by the TWDB, the total
     demand for water is expected to increase 18 percent from 2000 to 2050.

     The availability of water in streams is an issue of quality as well as
     quantity. Insufficient water flows in streams can affect the quality of the
     aquatic environment, or can reduce a stream’s capacity to assimilate
     wastewater discharges. It can also limit the flows of fresh water into
     downstream estuaries, which are dependent on fresh water for their
     ecological health and fisheries uses.

     The TCEQ cooperates with the TPWD and the TWDB to collect instream
     flow data collection and analyze and evaluate the information to determine
     the flow conditions necessary to support a sound ecological environment.

     The TCEQ also conducts environmental reviews of water rights
     applications to assess the possible impacts of granting of a water right on
     fish and wildlife habitat, water quality and the instream uses associated
     with the affected body of water. Possible impacts to bays and estuaries are
     also addressed for those permits within 200 miles of the Gulf of Mexico.

     The monitoring of stream flows and protection of instream uses is required
     and authorized under TCEQ rules, and by Texas House and Senate bills.

     Protecting Sources of Drinking Water
     The aquifers, lakes, and rivers that are designated by law for use as
     sources of drinking water are called source waters. The TCEQ protects
     source waters by:

        !       assessing their susceptibility to pollution.
        !       assisting local communities to develop source water
                protection programs.

     A report assessing the vulnerability of each source water is provided to the
     operators of systems that supply public drinking water. The assessments
     consider the location of pollutant sources, intrinsic characteristics,
     contaminant occurrence, well construction, geology, known point sources,
     and land uses that occur within the capture zone of groundwater wells and
     within the watersheds of surface water intakes.

     The assessments provide the scientific basis for the implementation of
     source water protection projects. Water systems are encouraged to take an



34                                          TCEQ/TSSWCB joint publication SFR-68/04
                 active role in verifying the completeness and accuracy of the data used in
                 the assessment report.

                                            Source water protection is a program to prevent
  A water body is called “impaired” if it   contamination of groundwater or surface water
  does not meet one or more of the          that is used as a source of public drinking water.
  standards established for its use.
  For example, a water body may be
                                            Water suppliers implement source water
  designated as impaired for the            protection programs by working cooperatively
  aquatic life use if dissolved oxygen      with community members and by educating
  concentrations are chronically low.       people about issues that affect their drinking
  The water body may be attaining all       water. All public water supply systems may
  its other uses—as a source for
  drinking water, and as a safe place       receive assistance in developing plans and
  to fish or swim—but still be              implementation measures free of charge.
  designated as impaired because all        Priorities for state assistance with plan
  uses are not attained.                    development are set according to the results of
                                            the susceptibility assessments.

                 The protection and assessment of source waters is required and authorized
                 under Section 1453 of the federal Safe Drinking Water Act.

                 Watershed Protection Plans
                 Watershed protection plans may be developed to protect high-quality
                 waters, to address threatened waters before they become impaired, or to
                 restore water bodies for which TMDLs are not planned or developed.
                 These plans are still based on environmental targets, usually maintaining
                 the applicable water quality standards. The types of goals and strategies
                 that may be used in watershed protection plans are outlined in the EPA’s
                 guidance for federal nonpoint source grants authorized under Section 319
                 of the Clean Water Act.

                 Watershed protection plans:

                     !        describe the sources of pollution affecting a particular
                              water body.
                     !        define the actions needed to reduce pollution or restore
                              water quality, both regulatory and voluntary.
                     !        are developed in cooperation with regional and local
                              stakeholders.

                 Watershed protection plans provide the opportunity to improve and
                 protect water quality so that potential problems are addressed before the
                 stream, lake, or bay actually fails to meet water quality standards.

Implementing Plans to Restore Water Quality
                 After a water body is listed in Category 5 [the 303(d) list], several
                 different courses may be pursued to bring it into compliance with the
                 standards. Further evaluation may be necessary to determine if the current

TCEQ/TSSWCB joint publication SFR-68/04                                                     35
         standard is appropriate, or to determine the cause of the impairment. The
         TCEQ may begin a project to reduce pollution and restore the impaired
         use under its Total Maximum Daily Load (TMDL) Program. The TCEQ
         undertakes new projects to restore water quality with each new
         assessment, while continuing to complete and implement plans for waters
         listed in previous years.

         For water bodies that are impaired due wholly or in part to nonpoint
         source (NPS) pollution, federal grant funds provided under Section 319 of
         the Clean Water Act play a key role in implementing restoration projects.
         These grants provide support for management practices that improve the
         quality of impaired or threatened waters, and are often used to support
         development and implementation of TMDLs. NPS grants are also used to
         implement watershed protection plans that are not associated with
         TMDLs; to conduct special projects that assess impacts due to NPS
         pollution; and to prevent the degradation of healthy rivers, lakes, and bays.

Standards Analysis
         Water bodies are placed in Category 5b if there is reason to believe that
         one or more of the assigned standards may be inappropriate because of
         local conditions that are not due to human impacts. Waters in this category
         are slated for an analysis of their standards, called a use attainability
         analysis, or UAA.

         For example, to determine appropriate aquatic life uses and related
         dissolved oxygen criteria, a UAA may consider aspects such as regularity
         of flow, habitat structure, typical water chemistry, and fish and other
         aquatic organisms that are characteristic in the area. Some rivers and lakes
         naturally support an abundant and diverse aquatic community, while other
         water bodies—such as small streams with intermittent flow—tend to have
         fewer types and total numbers of aquatic organisms. In addition, some
         water bodies might support a diverse aquatic community and fishery even
         though some components of their overall water quality are not superior
         under natural conditions.

         Depending on the results of the UAA, uses and/or supporting criteria may
         be revised to be more or less stringent. Revisions of the standards are
         reviewed by the public, adopted by the Commission, and approved by the
         EPA. When a review and any resulting revisions of the standard are
         completed, the water body may be moved to another subcategory of the
         303(d) List, or to another category of the Inventory.

Targeted for Monitoring and Additional Assessment
         Water bodies in Category 5c are targeted for additional monitoring and
         assessment. Water bodies may be placed in this category when there is
         insufficient information to determine the best course of action. The TCEQ
         and its monitoring partners collect the additional data and information

36                                              TCEQ/TSSWCB joint publication SFR-68/04
                needed to determine if a standards review is appropriate, if a TMDL
                should be scheduled, or, more rarely, to determine the degree and
                geographic extent of nonsupport. Depending on the results, the water body
                may be moved to another subcategory of the 303(d) List, or to Category 1
                or 2.

TMDLs and Implementation Plans
                TMDLs and their implementation plans are developed to address water
                bodies listed in Category 5a. States must establish a TMDL for each
                impairment in each water body in Category 5a. This may mean that
                several TMDLs may be developed for one river or lake. A TMDL must
                also allocate this load to the point and nonpoint sources of pollution in the
                watershed. The state must then develop an implementation plan to achieve
                the loading allocations defined in the TMDL. TMDLs are subject to EPA
                approval; implementation plans are not.

                Total Maximum Daily Loads
                In order to restore water quality, it is first necessary to be reasonably
                certain of the sources and causes of pollution. One way to accomplish this
                is to develop a scientific model called a total maximum daily load
                (TMDL).

  TMDL Implementation Plans (IPs) and                  A TMDL:
  Watershed Protection Plans (WPPs)
                                                       ! determines the maximum
  Both IPs and WPPs have the same goal —                 amount of a pollutant that a
  improving water quality in rivers, lakes, or bays.     water body can receive and
  ‘   How they differ:
                                                         still both attain and maintain
                                                         its water quality standards;
      T  IPs are remedial actions for impaired           and
         waters; WPPs may be either remedial
         or preventive.                                ! allocates this allowable
      T IPs are based on total maximum daily             amount (load) to point and
         loads; WPPs use other measurable                nonpoint sources in the
         environmental goals for water quality.          watershed.
  ‘   How they are alike:
      T   Define actions needed to reduce              TMDLs must be submitted to the
          pollution and restore water quality.         Environmental Protection Agency
      T   Include both regulatory and voluntary        (EPA) for review and approval. A
          actions.
                                                       TMDL is normally prepared for each
      T   Are developed in cooperation with
                                                       pollutant in each impaired water body.
          regional and local stakeholders.
                                                       In general, a TMDL should be
      T   Are based on the best available
          scientific methods and tools.                completed within 13 years of the initial
                                                       listing of a water body.

                Implementation Plans
                After a TMDL is completed, an implementation plan is developed that
                describes the regulatory and voluntary activities necessary to achieve the

TCEQ/TSSWCB joint publication SFR-68/04                                                     37
       pollutant reductions identified in the TMDL. Management activities
       incorporate both nonregulatory and regulatory mechanisms, such as permit
       effluent limits and recommendations, nonpoint source pollution
       management practices, stream standard revisions, special projects,
       pollution prevention, public education, and watershed- specific rule
       recommendations. The best strategies for each individual watershed are
       developed in cooperation with regional and local stakeholders.

       The implementation plan describes these various activities, the schedule
       for implementing them, and the legal authority for the regulatory
       measures. It also provides reasonable assurance that the voluntary
       practices will be undertaken. For instance, the plan may identify grant
       funds that have been secured to implement voluntary actions. The plan
       also includes the measurable results that will be achieved through the plan,
       along with a follow-up monitoring plan to determine its success. The
       ultimate goal is always the attainment of the water quality standard, but
       additional, interim results may be evaluated to assess progress toward that
       goal.

       Even after plans are fully implemented, it is difficult to accurately predict
       how long it will take for improvements to occur in the stream, or how
       much improvement will be seen. For this reason, there is a schedule for
       phasing in implementation activities, especially those that address non-
       point sources of pollution. Less expensive, time-tested activities are
       implemented first, and their impacts are assessed. If water quality
       standards are not yet achieved, then another set of regulatory and/or
       nonregulatory activities is implemented. Through this adaptive
       management approach, the water body is reassessed, and adjustments are
       made in the implementation activities as needed to attain water quality
       standards in the stream.

A Joint Effort—Stakeholder Involvement
       Stakeholders are involved in each of the water quality management cycle
       through participation in standing and special committees.

       The TCEQ is designated by law as the lead state agency for water quality
       in Texas. The Texas State Soil and Water Conservation Board (TSSWCB)
       also plays an important role as the lead agency in the state for the
       management of agricultural and silvicultural (forestry) nonpoint source
       runoff. The Texas Clean Rivers Program—a partnership of regional water
       management authorities—plays a key role in providing forums for
       stakeholder involvement and coordinating water quality management
       activities (see Figure 3.1 - Major River Basins and Planning Areas in
       Texas).

       Many other local, regional, state, and federal agencies have specific
       responsibilities that are critical to the restoration of polluted water bodies.


38                                             TCEQ/TSSWCB joint publication SFR-68/04
               Nongovernment organizations, especially at the watershed level, can
               provide information about local concerns and infrastructure, and can help
               build support for the kind of pollution controls that may be required to
               restore water quality.

               A coalition of government agencies and citizens is necessary to develop
               and implement water quality protection and restoration strategies. Public
               participation in watershed protection plans and TMDL implementation
               plans provides the following benefits:

                   !   improves the quality and increases the quantity of
                       information used as the basis for plans,
                   !   promotes government accountability,
                   !   ensures that state government considers the local
                       perspective in its decisions,
                   !   helps stakeholders gain insight into the nature of water
                       quality problems and alternate solutions in their
                       communities,
                   !   leads to voluntary individual actions to curb pollution, and
                   !   local ownership of water quality.

Who Are Stakeholders?

               Stakeholders include all individuals or organizations in the watershed who
               have one or more of these attributes:


                   !   are significant contributors of pollutant loadings or other
                       impacts to water quality;
                   !   are significantly affected by water quality problems;
                   !   are directly affected by project outcomes or decisions;
                   !   may be required to undertake control measures because of
                       statutory or regulatory requirements;
                   !   have statutory or regulatory responsibilities closely linked
                       to water quality—for example, flood control;
                   !   can help develop or implement actions to remedy water
                       quality problems;
                   !   live in the watershed or use the water resource.


               Although not an exhaustive list of possible stakeholders, these categories
               give some examples of the kinds of groups and people who may become
               involved in protecting and restoring water resources:




TCEQ/TSSWCB joint publication SFR-68/04                                                39
            ! Wastewater dischargers–municipal and industrial.
            ! Public–individuals; civic groups such as those representing
                                             environmental, consumer,
                                             recreational, and
                                             community interests;
                                             schools, universities, and
                                             private landowners.
                                             ! Agriculture and
                                                 aquaculture – corporate
                                                 and individual farmers,
                                                 ranchers, and producers;
                                                 subsistence and
                                                 commercial harvesters
                                                 of fish and shellfish;
                                                 agricultural groups and
                                                 organizations.

                                                 ! Business –commercial,
                                                   residential, and
                                                   industrial firms;
                                                   utilities, business
                                                   groups, and trade
                                                   associations.
         Figure 3.3 Stakeholder Forums           ! Government–city,
                                                   county, regional, state,
                                                   federal, and
                                                   international
                                                   government agencies,
                                                   tribes, utility districts,
                                                   and river authorities.

Coordination of Stakeholders
         Coordination of stakeholders takes place at three levels (see Figure 3.3 -
         Stakeholder Forums):

            !   statewide for agencies and organizations that conduct water
              quality management activities across the entire state, to
              target and synchronize their efforts.
            ! regionally to assess conditions within a basin and establish
              basin-specific goals and priorities.
            ! locally to develop watershed protection plans and TMDL
              implementation plans that have local support and input.




40                                             TCEQ/TSSWCB joint publication SFR-68/04
               Clean Rivers Program Stakeholders Work Group
               Comprised of staff from the regional planning agencies of the Clean Riv-
               ers Program (CRP), the work group represents stakeholder interests at the
               state level. The CRP Stakeholders Work Group coordinates with the
               TCEQ and other state agencies at annual meetings. See Figure 1 for a list
               of the CRP planning agencies and the regions they manage.

               Basin Steering Committees
               Basin steering committees of the Clean Rivers Program provide the
               primary forum for coordinating stakeholder involvement at the regional
               level. These committees carry out educational activities within the basin,
               such as workshops and volunteer programs. They also produce public
               information products and conduct promotional campaigns through various
               media.

               Local Watershed Work Groups
               These work groups, comprised of key stakeholders in priority watersheds,
               provide valuable input about local conditions. They develop site-specific
               strategies for developing watershed protection plans or TMDL
               implementation plans.

Education
               The TCEQ has numerous projects and programs to inform the public and
               their representatives about issues that affect water quality and ways
               individuals and regulated organizations can act to protect and improve the
               environment. These programs range from technical assistance to business
               owners to ad campaigns to formation of stakeholder groups to advise the
               agency.

               Education is integrated into most water quality programs at the TCEQ.
               Educational activities may include presentations to stakeholder groups,
               forums to share pollution reduction technologies, public awareness
               campaigns, or distribution of educational materials to schools and
               volunteer groups.


GAUGING SUCCESS
               Success of the state’s water quality management program is gauged by
               progress made toward protecting or restoring water quality uses that
               benefit wildlife, people, and the environment. Some of the reports of
               success that the TCEQ is charged with producing include:

               # progress report on environmental and program goals for the
                 Texas Legislative Budget Board
               # biennial reports to the Texas Legislature


TCEQ/TSSWCB joint publication SFR-68/04                                                  41
     # annual reports of TMDL implementation and nonpoint source
       management activities
     # the Texas Water Quality Inventory and 303(d) List.

     With the exception of the report to the Legislative Budget Board, these
     documents are available on the TCEQ’s Web site at www.tceq.state.tx.us.

     Making successful management decisions depends on understanding the
     relationships among water quality, water use, and conditions within a
     watershed. With the watershed approach, Texas integrates policy, science,
     and people to ensure clean water for years to come.




42                                        TCEQ/TSSWCB joint publication SFR-68/04
Chapter 4 Coordination
               The State of Texas Nonpoint Source Program envisions a partnership
               among many organizations, both public and private, to protect and restore
               water quality. With the extent and variety of water quality issues across
               Texas, the need for cooperation at all levels is essential. Surface water
               bodies and aquifers are not limited by political boundaries and therefore
               environmental solutions often cross federal, state, and local levels of
               responsibility. By establishing a coordinated framework to share
               information and resources, while minimizing unnecessary duplication, the
               State can more effectively focus its water quality protection efforts.
               Chapters 6, 7, and 8 describe the programs and best management practices
               that are implemented to address NPS pollution. This chapter provides a
               description of the agencies and organizations that implement the tools
               described in Chapters 5, 6, and 7 to protect and restore water quality.

Interstate and International Coordination
               The State of Texas coordinates with neighboring U. S. states and Mexico
               in protecting water resources in those watersheds or aquifers which cross
               political boundaries. Cooperation is multidimensional, involving
               governments at every level; voluntary, non-governmental organizations;
               private businesses; and the public. A number of programs and activities
               are in place to facilitate collaboration between jurisdictions.

Interstate Coordination
               The TCEQ and TSSWCB are involved in interstate coordination of water
               resource protection activities through membership in national
               organizations such as American Water Works Association (AWWA),
               Association of State Drinking Water Administrators (ASDWA),
               Association for State and Interstate Water Pollution Control
               Administrators (ASIWPCA), Council of State Governments (CSG),
               National Association of State Conservation Agencies (NASCA), National
               Association of Conservation Districts (NACD), and the Ground Water
               Protection Council (GWPC).

               The TCEQ and TSSWCB, working through EPA Region 6, coordinate
               with the states of Arkansas, Louisiana, New Mexico, and Oklahoma
               through scheduled State-EPA meetings and conferences. These gatherings
               provide a forum for information exchange and discussions on the future
               direction and implementation of the Nonpoint Source Program.

International Coordination
               At the international level, the Border Environment Cooperation
               Commission and the North American Development Bank work with states
               and communities to develop needed water and waste infrastructure


TCEQ/TSSWCB joint publication SFR-68/04                                               43
     projects. In addition, Texas is one of the participants in the Ten State
     Initiative, which brings together environmental representatives from the
     U.S. and Mexican border states to discuss and act on environmental
     priorities.

     As a result of that commitment, the TCEQ has implemented State-to-State
     Strategic Environmental Plans with the environmental agencies of each of
     Texas' four neighboring Mexican states (Tamaulipas, Nuevo León,
     Coahuila, and Chihuahua). A variety of programs has evolved from the
     communication brought about by these plans, including industry
     recognition and pollution prevention programs, as well as a Border
     Recycles Day.

     The need to engage on a broad set of environmental issues resulted in the
     signing by the U.S. and Mexico of the La Paz Agreement in 1983. Ten
     years later, the North American Free Trade Agreement (NAFTA) further
     reinforced ties between the U.S. and Mexico. It included environmental
     side agreements that established both trilateral and binational entities to
     address environmental issues.

     Various state agencies in Texas have developed programs that have an
     important effect on the border. Some, such as the Texas Water
     Development Board's Economically Distressed Areas Program, help
     communities plan and develop needed infrastructure. The programs
     discussed below are designed to improve the environment of the border
     region.

     TCEQ Border Affairs Program
     The TCEQ Border Affairs Program works closely with TCEQ regional
     offices in Laredo, Harlingen, El Paso, and San Antonio to resolve
     concerns for border residents. As an information clearinghouse, the group
     has daily contact with government officials on both sides of the border.
     Border Affairs has helped foster cross-border environmental agreements
     and programs with Mexican counterparts at the local, state, and federal
     levels and with stakeholders in the private sector and non-governmental
     organizations. The group has worked on environmental infrastructure
     matters with the Border Environment Cooperation Commission and the
     North American Development Bank.

     Border 2012 Program
     The U.S. Environmental Protection Agency, its Mexican counterpart, the
     Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT), the
     U.S. and Mexican border states, and U.S. border tribes, have developed
     the Border 2012 program to protect the environment and public health in
     the border region. The program focuses on decreasing pollution and
     lowering the risks of exposure to pesticides and other chemicals. The goal
     of the program is to achieve measurable improvements in air, water and
     soil quality in the border region by the year 2012.

44                                         TCEQ/TSSWCB joint publication SFR-68/04
               The focus of Border 2012 is to address environmental issues at the local
               level by decentralizing the decision making and priority setting processes,
               with implementation driven by four Regional Workgroups, three
               Borderwide Workgroups and three Policy Forums. Regional Workgroups
               address environmental issues affecting specific sub-regions. The
               border-wide workgroups address binational and transboundary aspects of
               environmental health, emergency preparedness and response, and
               cooperative enforcement and compliance. Policy Forums focus on broad
               issues concerning air and water quality, and the effective management of
               hazardous and solid waste and toxic substances. In addition, task forces
               will be created, as needed, to implement projects at the local level
               consistent with the needs of the region and the goals of the program.

               The Rio Grande/Río Bravo Basin Coalition
               The Rio Grande/Río Bravo Basin Coalition is a multinational,
               multicultural organization with leadership from the U.S., Mexico, and the
               Pueblo Nation. Its purpose is to help local communities restore and sustain
               the environment, economies, and social well-being of the Rio Grande/Río
               Bravo Basin. The coalition has 50 partner organizations from around the
               watershed which share a commitment to the health and long-term
               sustainability of the Río Grande/Río Bravo Basin. The belief is that
               building coalitions across borders is the best way to solve international
               environmental problems.

               The Coalition organizes the Día del Río citizen-led event. The event is
               both a call to action and a celebration of the basin's rich diversity, and it
               draws public attention to the critical state of the basin's rivers,
               groundwater, and wildlife. Activities focus on raising awareness and
               include public talks, tree planting, and river cleanups.

               International Boundary and Water Commission
               The International Boundary and Water Commission (IBWC) encourages
               and coordinates the establishment of cooperative relationships with
               federal, state, and local agencies, both in the U.S. and in Mexico, in
               carrying out activities along the border. The U.S. and the IBWC may
               undertake cooperative projects to implement existing treaties and other
               agreements between the two Governments. Projects may originate with
               the emergence of an environmental problem requiring the agreement and
               cooperation of the two Governments for a solution. Because of the
               international nature of the Rio Grande, the State of Texas has contracted
               with the U.S. Section of the IBWC to implement the Clean Rivers
               Program, including the Friends of the Rio Grande initiative, in its
               1,254-mile international boundary section.




TCEQ/TSSWCB joint publication SFR-68/04                                                        45
Federal Agencies

Environmental Protection Agency
         EPA works to develop and enforce regulations that implement
         environmental laws enacted by Congress. EPA is responsible for
         researching and setting national standards for a variety of environmental
         programs, and delegates to states and tribes the responsibility for issuing
         permits and for monitoring and enforcing compliance. While EPA protects
         the nation's natural resources primarily through regulation, EPA has also
         developed a wide variety of funding, planning, and education programs
         that are effective in protecting environmental quality.

U.S. Geological Survey
         The U.S. Geological Survey (USGS) has the principal responsibility
         within the Federal Government to provide the hydrologic information and
         understanding needed by others to achieve the best use and management
         of the Nation's water resources. Through the National Water Quality
         Assessment Program (NAWQA), USGS scientists collect and interpret
         data about water chemistry, hydrology, land use, stream habitat, and
         aquatic life. The NAWQA Program is a primary source for long-term,
         nationwide information on the quality of streams, groundwater, and
         aquatic ecosystems. This information supports national, regional, State,
         and local decision making and policy formation for water-quality
         management. The goals of NAWQA are to assess the status and trends of
         national water quality and to understand the factors that affect it.

National Oceanic and Atmospheric Administration
         Programs work to protect, restore, and responsibly develop the nation's
         coastal communities and resources while ensuring their protection for
         future generations.

U.S. Army Corps of Engineers
         The U.S. Army Corps of Engineers is a worldwide organization that
         provides engineering services, environmental restoration, and construction
         support for a wide variety of civil and military projects. The Corps'
         primary civil mission is developing and managing the nation's water
         resources. The Corps develops projects to reduce flood damage; improves
         navigation channels and harbors; protects wetlands; and preserves,
         safeguards, and enhances the environment.

U.S. Coast Guard
         The U.S. Coast Guard is a military, multi-mission, maritime service and
         one of the nations five Armed Services. Its mission is to protect the public,
         the environment, and U.S. economic interests – in the nations ports and

46                                              TCEQ/TSSWCB joint publication SFR-68/04
               waterways, along the coast, on international waters, or in any maritime
               region as required to support national security. The Coast Guard addresses
               the wide ranging problems associated with preventing, responding to, and
               paying for pollution associated with oil spills and leaks. It does so by
               creating a comprehensive programs that deal with prevention, response,
               liability, and compensation of spills from vessels and facilities in our
               navigable waters.

U.S. Department of Agriculture
               The U.S. Department of Agriculture (USDA) is committed to helping
               America's farmers and ranchers. The USDA is the steward of the nation's
               192 million acres of national forests and rangelands. It is the country's
               largest conservation agency, encouraging voluntary efforts to protect soil,
               water, and wildlife on the 70 percent of America's lands that are in private
               hands. USDA is a research leader in everything from human nutrition to
               new crop technologies that allow us to grow more food and fiber using
               less water and pesticides.

               USDA-Natural Resource Conservation Service
               The mission of the Natural Resources Conservation Service (NRCS) is to
               provide technical and financial assistance to landowners and operators on
               soil and water conservation matters. Work is directed through local soil
               and water conservation districts in Texas, according to the terms of
               memoranda of understanding with each district.

               USDA-Farm Services Agency
               The principal mission of the Farm Services Agency (FSA) includes
               stabilizing farm income, helping farmers conserve land and water
               resources, providing credit to new or disadvantaged farmers and ranchers,
               and helping farm operations recover from the effects of disaster. Many of
               the FSA operated programs are funded through the Commodity Credit
               Corporation (CCC), a government owned and operated corporation
               established in 1933.

               USDA-Agricultural Research Service
               The Agricultural Research Service (ARS) is the principal in-house
               research agency of the U.S. Department of Agriculture (USDA). ARS
               conducts research to develop and transfer solutions to agricultural
               problems of high national priority. Two of the twenty-two ARS National
               Programs, Water Quality and Management and Soil Resource
               Management, are strongly committed to applied nonpoint source pollution
               research as part of their mission to increase understanding and develop
               solutions to protect the Nation's soil and water resources. In Texas, ARS is
               conducting ongoing research on nonpoint source related issues such as:
               land application of municipal and agricultural wastes; improved
               management of soil, water, nutrients, and chemicals in agricultural
               production systems; and enhanced simulation tools for water quality,

TCEQ/TSSWCB joint publication SFR-68/04                                                 47
         hydrology, and crop growth. ARS research, conducted by laboratories
         throughout the state, is often carried out in cooperation with universities,
         state research and extension centers, and private organizations.

         USDA-Forest Service
         Congress established the Forest Service in 1905 to provide quality water
         and timber for the Nation's benefit. Main activities include (1) protection
         and management of natural resources on National Forest System lands, (2)
         research on all aspects of forestry, rangeland management, and forest
         resource utilization (3) community assistance and cooperation with State
         and local governments, forest industries, and private landowners to help
         protect and manage Non-Federal forest and associated range and
         watershed lands to improve conditions in rural areas. The Forest Service is
         also the largest forestry research organization in the world, and provides
         technical and financial assistance to state and private forestry agencies.


State Agencies

Texas State Soil and Water Conservation Board
         The Texas State Soil and Water Conservation Board (TSSWCB) is the
         lead agency in Texas for activity relating to abating agricultural and
         silvicultural nonpoint source pollution. As the lead agency, the TSSWCB
         is mandated to: 1) plan, implement, and manage programs and practices
         for abating agricultural and silvicultural nonpoint source pollution; 2)
         administer a Technical Assistance Program for Soil and Water
         Conservation Land Improvement Measures; and 3) administer a Cost-
         Share Assistance Program for Soil and Water Conservation Land
         Improvement Measures. The TSSWCB meets these mandates by working
         with local soil and water conservation districts to administer its TMDL
         Program, 319(h) Grant Program, Conservation Planning Programs (i.e.
         Water Quality Management Plan and Comprehensive Nutrient
         Management Plan Programs), NPS compliant resolution process, Poultry
         Initiative, and involvement in the implementation of the Coastal
         Management Plan.

Texas Commission on Environmental Quality
         The Texas Commission on Environmental Quality (TCEQ) strives to
         protect the state's human and natural resources consistent with sustainable
         economic development. The TCEQ implements many sections of the
         Texas Water Code, federal Clean Water Act, and Safe Drinking Water
         Act. The TCEQ develops water quality requirements designed to protect
         attainable uses and to maintain the quality of waters in the state. The
         TCEQ has a number of programs that address various aspects of nonpoint
         source pollution management through planning, the setting of standards,


48                                              TCEQ/TSSWCB joint publication SFR-68/04
               data collection, assessment, targeting and prioritization, and
               implementation.

Texas Water Development Board
               The Texas Water Development Board (TWDB) is responsible for
               long-term water planning and financing water-related development for the
               state. Its duties include the preparation and update of the State Water Plan,
               collection and maintenance of water data, and administration of various
               funds designed to help finance state and local water-related projects.

Texas Parks and Wildlife Department
               The Texas Parks and Wildlife Department's (TPWD's) primary functions
               are to manage and conserve the natural and cultural resources of Texas
               and to provide hunting, fishing and outdoor recreation opportunities.

               To this end, TPWD operates and maintains a system of public lands,
               including state parks, historic sites, fish hatcheries and wildlife
               management areas; monitors conserves and enhances the quality of public
               and private lands, rivers, streams, lakes, coastal marshes, bays, beaches,
               and Gulf waters; manages and regulates fishing, hunting and boating
               activities; assists public and private entities in providing outdoor
               recreational opportunities; conducts education and outreach events and
               programs; and cooperates with other governmental entities in these areas.
               TPWD's efforts focus on programs that affect habitat, in the belief that
               preservation and creation of appropriate habitat will result in the
               protection of fish, wildlife, and recreation.

Texas Agricultural Experiment Station
               The Texas Agricultural Experiment Station (TAES) is the official state
               agricultural research agency in Texas. It is administered by the Board of
               Regents of the Texas A&M University System. The TAES cooperates
               with other state and federal agencies and colleges and universities in
               planning and conducting agricultural research. Programs of the TAES are
               designed to provide the scientific base to develop the full agricultural
               potential of Texas and improve the utilization and conservation of natural
               resources.

Texas Department of Agriculture
               The Texas Department of Agriculture (TDA) is the State's lead regulatory
               agency for agricultural pesticide regulation. The Texas Pesticide and
               Herbicide Laws grant TDA the authority to enforce the provisions of the
               law pertaining to the registration, distribution, and use of all agricultural
               pesticides. TDA is responsible for licensing all agricultural pesticide
               applicators and the labeling, storage, sales, usage, and disposal of all
               pesticides. TDA also cooperates with other state agencies that have
               statutory pesticide responsibilities, such as the TCEQ, the Structural Pest

TCEQ/TSSWCB joint publication SFR-68/04                                                   49
         Control Board, and the DSHS. TDA is also responsible for the
         enforcement of federal pesticide laws under a cooperative agreement with
         the EPA.

Texas Institute for Applied Environmental Research
         The Texas Institute for Applied Environmental Research (TIAER) was
         established as part of the Texas A&M System in 1992. The first mandate
         in its enabling legislation is to conduct applied research on environmental
         issues that have public policy implications. The legislation also calls for
         TIAER to provide national leadership on emerging environmental policy
         and to provide a setting for environmental studies on the interface between
         government and the private sector. Establishing interdisciplinary programs
         or partnerships to develop and implement new policies, technologies,
         strategies, and relationships is another TIAER mandate.

         The TIAER goal is to impact state and national environmental policy. A
         principal that is fundamental to this goal is that improvements in the
         environment are best accomplished not by simply conducting scientific
         research, but by using research results to formulate policy
         recommendations that will actually be implemented by government and
         other institutions. TIAER seeks to use cutting-edge strategies and
         technologies to assist developers and implementers of environmental
         policy. Partnerships with other universities and state agencies are integral
         aspects of Institute work. These partnerships build on the strengths of each
         entity to produce an effective, efficient program.

Texas Water Resources Institute
         The Texas Water Resources Institute is a unit of the Texas Agricultural
         Experiment Station and Texas Cooperative Extension. It is part of a
         national network of institutes created by the Water Resources Research
         Act of 1964. The Institute is funded by the United States Geological
         Survey and is affiliated with the National Institutes for Water Research.

         The Texas Water Resources Institute serves as a focal point for
         water-related research at Texas universities, encouraging discussion of
         statewide issues through meetings and multi-university studies. The
         Institute links academic expertise with state and federal agencies,
         strengthening water research and education. Additionally, the Institute
         provides leadership for water resources programs through grant
         administration, pre-award services, project management, communications,
         and facilitation of interagency collaboration.

Texas Forest Service
         The Texas Forest Service (TFS), a member of the Texas A&M University
         System, provides statewide leadership and professional assistance to



50                                             TCEQ/TSSWCB joint publication SFR-68/04
               assure that the state's forest, tree, and related natural resources are wisely
               used, nurtured, protected, and perpetuated for the benefit of all Texans.

Texas Cooperative Extension
               The Texas Cooperative Extension (TCE) is a partnership between the
               USDA, Texas A&M University, and County Commissioners Courts. The
               basic mission of the TCE is education and dissemination of information
               relating to agriculture, home economics/consumer sciences, community
               development, and 4-H/youth. County Extension Agents deliver most of
               the educational programs of the TCE. These county agents, supported by
               specialists based at College Station and 12 regional centers throughout
               Texas, provide technical information and respond to individual problems
               1and questions, conduct educational meetings, and establish and evaluate
               demonstrations to show the benefits of using practices based on the latest
               scientific research. They also provide educational information through
               radio and television programs, newspapers, newsletters, and bulletins.
               Water quality and conservation is one of six major program issues being
               addressed by agents and specialists on an interdisciplinary basis.

Texas Department of Licensing and Regulation
               The Texas Department of Licensing and Regulation (TDLR) is the
               primary state agency responsible for the oversight of businesses,
               industries, general trades, and occupations that are regulated by the state
               and assigned to the department by the legislature. TDLR ensures public
               safety and welfare in many diverse areas. Issuing licenses, conducting
               inspections, investigating complaints, issuing penalties, setting rules and
               standards, and holding hearings, names just a few of the agency's
               activities. The TDLR activities as they relate to occupational certifications
               ensures that environmental professionals operate in compliance with
               federal and state laws and regulations.

Texas General Land Office
               The Texas General Land Office (GLO) is the state agency responsible for
               the management of state-owned public lands not specifically purchased by
               or deeded to other agencies. The GLO is a proprietary state agency. The
               GLO is also the state's lead agency for coordinating the Coastal
               Management Plan designed to help preserve public beach access, protect
               coastal wetlands and other coastal natural resources, and respond to beach
               erosion along the Texas coast.

Railroad Commission of Texas
               The Railroad Commission of Texas (RRC) is the state agency with
               primary regulatory jurisdiction over the oil and natural gas industry,
               pipeline transporters, natural gas utilities, rail safety matters, and surface
               mining operations. The main functions of the RRC are to protect the
               environment, protect public safety, protect the correlative rights of mineral

TCEQ/TSSWCB joint publication SFR-68/04                                                    51
         interest owners, prevent waste of natural resources, and assure fair and
         equitable utility rates in those industries over which it has been granted
         authority.

Texas Department of Transportation
         The Texas Department of Transportation (TxDOT) is the lead state agency
         for construction and maintenance of state roads, which includes
         responsibility for the management of road and highway nonpoint sources
         of pollution. The goal of TxDOT as it relates to nonpoint source pollution,
         is to prevent the degradation of receiving waters due to storm water runoff
         from highway operations. TxDOT has developed a comprehensive storm
         water management program aimed at achieving this goal.

Texas Department of State Health Services
         The Texas Department of State Health Services (DSHS) is the lead agency
         to protect, promote, and improve the health of the people of Texas. DSHS
         administers several programs that support public health and
         environmental programs. The Environmental Sciences Branch provides
         analytical chemistry laboratory support to the EPA Safe Drinking Water
         Program and analyzes fish and shellfish from Texas coastal waters, inland
         lakes, and rivers for organic chemicals and toxic metals. The Division for
         Regulatory Services-Seafood and Aquatic Life Group protects consumers
         of fish and shellfish from disease or other health hazards transmissible by
         these products produced in or imported into Texas. The Seafood and
         Aquatic Life Group also protects the recreational fishers from disease or
         contaminants found in fish and other aquatic species caught in Texas'
         lakes, rivers, bays or nearshore State waters.

Interagency Agreements
         Maximizing the utilization of local, state and federal resources is essential
         if limited resources are to be effective. Texas has implemented a variety of
         mechanisms to ensure and improve coordination among and between
         Federal, State, and local officials for addressing water quality. A list of
         some of the agreements and strategic partnerships is provided below.




52                                              TCEQ/TSSWCB joint publication SFR-68/04
Table 4.1 Federal, State, and Local Agreements to Facilitate Cooperation on NPS Issues
 Cooperative Entities       Type of Agreement    Purpose of Agreement
 TCEQ and TSSWCB            Memorandum of        Facilitate cooperation between the two
                            Understanding        primary Texas NPS control agencies in
                                                 achieving program goals.

 TCEQ and TSSWCB            Memorandum of        Sets for the cooperating responsibility and
                            Agreement            authority regarding development of total
                                                 maximum daily loads (TMDLs).

 TSSWCB and Texas A&M       Memorandum of        Establishes commitments to work together to
 University System          Understanding        accomplish statewide NPS pollution
                                                 reduction goals with the state’s agricultural
                                                 and silvicultural producers. TAES will
                                                 conduct soil and water conservation and
                                                 nonpoint source management demonstrations
                                                 and related educational activities, and TAES
                                                 will cooperate with TSSWCB and SWCDs
                                                 to identify research needs relative to soil and
                                                 water conservation and nonpoint source
                                                 management.

 TCEQ and RRC               Memorandum of        Clarifies the division of jurisdiction between
                            Understanding        TCEQ and RRC with regards to wastes
                                                 generated in connection with oil and gas
                                                 exploration, development, and production
                                                 activities.

 TCEQ and GLO               Memorandum of        Sets forth the mutual coordination of
                            Understanding        program responsibility and procedural
                                                 mechanisms for the Galveston Bay Estuary
                                                 Program to address threats arising from
                                                 pollution, development, and overuse, and
                                                 enhancing ecosystems-based management of
                                                 Galveston Bay.

 TCEQ with other state      Memorandum of        Establishes agreements with key state and
 agencies: TPWD, DSHS,      Agreement            federal partners to set priorities, achieve
 TWDB, Tx A&M                                    water quality goals, and plan and implement
 University System                               watershed projects to protect and restore
                                                 NPS-impacted water bodies.

 USDA-NRCS with local       Memorandum of        Sets forth the cooperation for SWCDs to
 Soil and Water             Agreement            furnish technical assistance to farmers and
 Conservation Districts                          ranchers in the preparation of soil and water
                                                 conservation plans.

 TCEQ and TWDB              Memorandum of        Sets forth the cooperation, responsibility and
                            Agreement            authority regarding the development of
                                                 TMDLs.

 TCEQ and TDA               Memorandum of        Sets forth the cooperation, responsibility and
                            Agreement            authority regarding the development of
                                                 TMDLs.

 TCEQ and TAES, TCE         Memorandum of        Sets forth the cooperation, responsibility and
 and TFS                    Agreement            authority regarding the development of
                                                 TMDLs.



TCEQ/TSSWCB joint publication SFR-68/04                                                        53
TSSWCB and USDA-         Memorandum of           Sets forth the responsibilities and activities
Forest Service           Understanding           to be performed by each agency in carrying
                                                 out the State Water Quality Management
                                                 Plan and Nonpoint Source Management
                                                 Program as related to activities on National
                                                 Forest System Lands.

TPWD and TxDOT           Memorandum of           Provides a formal mechanism by which the
                         Understanding           TPWD may review TxDOT transportation
                                                  projects, including those that have the
                                                 potential to affect natural resources and to
                                                 promote the mutually beneficial sharing of
                                                 information which will assist TxDOT in
                                                 making environmentally sound decisions.

TCEQ and U. S. Coast     Memorandum of           Outlines the responsibilities for the recovery
Guard                    Agreement               of abandoned sealed containers on Texas
                                                 beaches for pollution prevention and
                                                 response.

GLO and U.S. Coast       Memorandum of           Provides for agreement to cooperate and to
Guard                    Agreement               coordinate efforts in implementing and
                                                 exercising their respective statutory and
                                                 regulatory duties related to pollution
                                                 prevention and response.




Stakeholder Involvement
              In order to achieve water quality goals, including those discussed in this
              Management Program, the State of Texas enlists the cooperation of
              affected entities, or stakeholders, to solicit input, assistance and
              cooperation in developing and implementing solutions. Within a particular
              watershed, stakeholders may include individuals and civic groups, farmers
              and ranchers, local industry, environmental organizations, wastewater
              dischargers, as well as local, state, and federal government entities.

Coordinated Monitoring
              The development of the annual coordinated monitoring schedule is an
              exceptional example of stakeholder involvement. Monitoring priorities
              and issues are discussed among state, federal, regional, and local
              governmental entities as well as other interested parties and the public.
              The implementation of coordinated statewide monitoring is a priority of
              the TCEQ and the Clean Rivers Program (CRP) to minimize duplication
              of effort, improve spatial coverage of monitoring sites, and improve
              consistency of parametric coverages (parametric coverages typically
              include field measurements, flow measurements, routine water chemistry,
              and fecal coliform analysis).

              At least one meeting is held in each major river basin, hosted by the CRP
              planning agency, during the spring of each year. The purpose of the
              meeting is to develop a coordinated basin-wide monitoring schedule. All

54                                                 TCEQ/TSSWCB joint publication SFR-68/04
               water quality monitoring groups that collect Surface Water Quality
               Monitoring data and commit to comply with TCEQ requirements for
               collecting quality-assured data are invited to participate. New sites are
               added, existing sites may be relocated, and parametric coverages may be
               changed based on the discussions at the meetings.

               The preliminary basin-wide monitoring schedules developed at the
               coordinated monitoring meetings are reviewed by the CRP planning
               agencies, CRP stakeholders, and TCEQ staff to ensure that proposed
               revisions to monitoring locations and parametric coverages are
               appropriate. After review, a statewide coordinated schedule is posted on
               the internet developed and maintained under contract by the Lower
               Colorado River Authority at: http://cms.lcra.org/


Stakeholder Groups

National Natural Resources Conservation Foundation
               The National Natural Resources Conservation Foundation (NNRCF)
               promotes innovative solutions to natural resource problems and conducts
               research and educational activities to support conservation on private land.
               The NNRCF is a private, nonprofit corporation. The foundation builds
               partnerships among agencies and agricultural, public, and private
               constituencies interested in promoting voluntary conservation on private
               lands.

Texas Forestry Association
               The Texas Forestry Association (TFA) is a tax-exempt, non-profit
               organization which serves as the voice of the forest industry in eastern
               Texas. Within the TFA, information and training are provided for both the
               logger and the landowner through the work of various committees. The
               TFA provides an excellent avenue for reaching those who own and
               manage forest resources and those employed in the forest industry.
               Members of TFA are committed to carrying out programs in water quality,
               education, and the continued production of forest resources.

Clean Rivers Program Stakeholder Workgroup
               The Stakeholder Workgroup meets annually to ensure the Clean Rivers
               Program is functioning in a manner that considers the needs of all
               stakeholders. Representatives from government, industry, business,
               agriculture, and environmental interest groups participate in the
               Workgroup. Surface water quality issues are discussed, and decisions are
               made through a consensus-based approach.

               The Stakeholder Workgroup was originally formed solely as an advisory
               group for the Clean Rivers Program. However, in recent years the

TCEQ/TSSWCB joint publication SFR-68/04                                                 55
         Workgroup’s scope and membership has been expanded to include input
         on the focus, goals, and functionality of the Nonpoint Source Management
         Program, the Total Maximum Daily Load Program, and the Surface Water
         Quality Monitoring Program. The group also works with the TCEQ on
         setting priorities for addressing water quality problems related to both
         point and nonpoint sources.

Clean Rivers Program Basin Steering Committees
         CRP Basin Steering Committees meet at least annually in each of Texas'
         major river basins. The purpose of these meetings is for the CRP Planning
         Agency to present water quality issues for the basin and request input
         from the local citizens and stakeholders in identifying potential sources of
         pollution and setting local priorities. In addition, the meeting provides a
         way for state agency representatives to communicate statewide NPS goals
         to stakeholders at the local level. The CRP Planning Agency responsible
         for monitoring and assessing water quality for each basin plans and
         conducts the meeting. Basin Status Reports prepared by the CRP Planning
         Agencies outline recommended actions for nonpoint source pollution
         management and other water quality issues in each river basin.

Local Watershed Action Committees
         Throughout the Total Maximum Daily Load (TMDL) development
         process, stakeholder work groups or existing community forums are used
         to obtain public input toward project design, sampling, load allocations,
         and options for implementation measures. After a TMDL has been
         established for a particular water body, the TCEQ develops an
         implementation plan with the participation of local stakeholders,
         describing the voluntary and regulatory measures needed to achieve
         reduction of the pollutants addressed in the TMDL.

NPS Stakeholders Forum
         The TCEQ and the TSSWCB established a statewide stakeholder
         workgroup comprised of CRP Stakeholders and other state and local
         entities with an interest in NPS management. The NPS Stakeholders
         Forum provides TSSWCB and TCEQ an opportunity to seek input and
         feedback on the State’s NPS management programs and activities. The
         NPS Stakeholders Forum meets at least annually. The TSSWCB and
         TCEQ NPS and CRP programs coordinate meetings of this group as
         needed. The meetings provide an opportunity for the NPS program to
         provide information about NPS management and the 319 program to state
         and local government entities for implementation of the goals and
         milestones of the NPS Management Program.




56                                             TCEQ/TSSWCB joint publication SFR-68/04
Texas Watershed Protection Committee
               In 1997 the Texas Watershed Protection Committee (TWPC) was formed
               for the purpose of coordinating actions on numerous atrazine detects
               found in surface water bodies that were sources of public drinking water.
               The TWPC is informal in that its existence is not mandated by any state
               law or regulation; however, it meets an important need for coordinating
               responses to pesticide contamination of surface water. As well as
               coordinating general activities aimed at preventing contamination, the
               TWPC actively seeks and identifies opportunities to improve existing
               surface water quality programs and promotes coordination between
               agricultural and surface water related agencies. Response to pesticide
               contamination is coordinated through the TWPC. Information is provided
               to the TWPC upon detection of pesticide contamination in surface water
               for evaluation and recommendations. Response to pesticide contamination
               in surface water falls under the jurisdiction of a number of state agencies
               including the TSSWCB, TCEQ, and TDA.

Texas Groundwater Protection Committee
               The Texas Groundwater Protection Committee (TGPC) was formally
               created by the 71st Legislature in 1989. The TGPC was created to bridge
               gaps among existing state water and waste regulatory programs in order to
               focus protection on groundwater resources and to optimize water quality
               protection by improving coordination among agencies involved in
               groundwater activities. Texas Water Code sections 26.401 through 26.407
               established the TGPC and outlined its powers, duties, and responsibilities.
               The TGPC is responsible for preparing the Texas Groundwater Protection
               Strategy, which provides guidelines for the prevention of contamination
               and for the conservation of groundwater and that provides for the
               coordination of the groundwater protection activities of the agencies
               represented on the committee.

               The state's groundwater protection policy was adopted by the Legislature
               as part of the Act that created the TGPC. The policy sets out
               non-degradation of the state's groundwater resources as the goal for all
               state programs. The state's groundwater protection policy recognizes:

               # the variability of the state's aquifers in their potential for
                 beneficial use and susceptibility to contamination,
               # the importance of protecting and maintaining present and
                 potentially usable groundwater supplies,
               # the need for keeping present and potential groundwater
                 supplies reasonably free of contaminants for the protection of
                 the environment and public health and welfare, and
               # the importance of existing and potential uses of groundwater
                 supplies to the economic health of the state.



TCEQ/TSSWCB joint publication SFR-68/04                                                57
         The TGPC actively attempts to identify opportunities to improve existing
         groundwater quality programs and promote coordination between
         agencies. The TGPC strives to identify areas where new or existing
         programs could be enhanced to provide additional needed protection.

Coastal Coordination Council
         The Coastal Coordination Council (Council) administers the Coastal
         Management Program (CMP). The Commissioner of the General Land
         Office chairs the Council. Other members of the Council include the chair,
         or a member designated by the chair, of the following agencies'
         Commissions: the Texas Parks and Wildlife Department (TPWD); the
         Texas Commission on Environmental Quality; the Railroad Commission
         of Texas; the Texas Water Development Board; the Texas Transportation
         Commission; the State Soil and Water Conservation Board; the director of
         the Texas A&M University Sea Grant Program serving as a non-voting
         member; and four gubernatorial appointees. The appointees consist of a
         local elected official who resides in the coastal area, a business owner in
         the coastal area, a resident from the coastal area, and a representative of
         agriculture.

         The Council is charged with adopting uniform goals and policies to guide
         decision-making by all entities regulating or managing natural resource
         use within the Texas coastal area. The Council reviews significant actions
         taken or authorized by state agencies and subdivisions that may adversely
         affect coastal natural resources to determine their consistency with the
         CMP goals and policies. In addition, the Council oversees the CMP
         Grants Program and the Small Business and Individual Permitting
         Assistance Program.

Texas Alliance of Groundwater Districts
         The Texas Alliance of Groundwater Districts (TAGD), formerly the Texas
         Groundwater Conservation Districts Association, was formed on May 12,
         1988, as a nonprofit §501©)(3) corporation. The TAGD was formed to
         further the purpose of groundwater conservation and protection activities.
         The TAGD provides a means of communication and exchange of
         information between individual districts regarding the day-to-day
         operation of local groundwater management. Members of TAGD are part
         of a network which provides valuable technical and operational
         experience. This often provides information that saves districts time and
         money. The TAGD maintains contact with members of the private sector
         and various elected, local, state, and federal officials, providing them with
         timely information on activities and issues relevant to groundwater
         management. Members of TAGD also serve on various local, state, and
         federal agency committees and subcommittees, providing input and
         information on behalf of the member district.




58                                              TCEQ/TSSWCB joint publication SFR-68/04
               One of the primary intents of Chapter 36 of the Texas Water Code, the
               chapter empowering groundwater conservation districts, is for the districts
               to develop and carry out educational programs for their constituency.
               Many districts have developed educational programs directed toward
               water conservation, well-head protection and overall environmental
               awareness that has contributed to the mitigation of NPS pollution.

Soil and Water Conservation Districts
               There are currently 217 soil and water conservation districts (SWCDs)
               organized across the state. Each district is an independent political
               subdivision of state government that is governed by five directors elected
               by landowners in the district. Local SWCDs provide assistance to
               agricultural landowners or operators.

               Various federal, state, and local agencies provide assistance to SWCDs.
               The TSSWCB was designed to organize and serve as the state-level
               administrative agency for local SWCDs. Through Memoranda of
               Understanding with the USDA-NRCS, local SWCDs are able to furnish
               technical assistance to farmers and ranchers in the preparation of a
               complete soil and water conservation plan to meet each land units's
               specific capabilities and needs.

               Senate Bill 503 of the 73rd Texas Legislature created the Water Quality
               Management Plan Program authorizing the TSSWCB, through local
               SWCDs to provide agricultural and silvicultural producers with an
               opportunity to comply with state water quality laws through traditional,
               voluntary, incentive-based programs. Landowners and operators may
               request the development of a site-specific water quality management plan
               through local SWCDs. Plans include appropriate land treatment practices,
               production practices, and management and technology measures to
               achieve a level of pollution prevention or abatement consistent with state
               water quality standards.

               SWCDs work to bring about the widespread understanding of the needs of
               soil and water conservation. In addition, they work to activate the efforts
               of public and private organizations and agencies into a united front to
               combat soil and water erosion and to enhance water quality and quantity
               in the state. It is the purpose of SWCDs to instill in the minds of local
               people that it is their individual responsibility to do the job of soil and
               water conservation.

Importance of Local Participation
               The 1987 amendment to the Clean Water Act was the first comprehensive
               attempt by the federal government to control nonpoint sources of
               pollution. Since that time, other state, federal and local programs have
               been created or expanded to protect water quality. Many local, regional,
               state, and federal agencies have specific responsibilities that are critical to

TCEQ/TSSWCB joint publication SFR-68/04                                                    59
                the restoration of NPS impacted waterbodies. Organizations, especially at
                the watershed level, can provide information about local concerns and
                infrastructure, and can help to implement and build support for pollution
                control measures necessary to restore water quality.

                The table below presents an overview of some of the programs involved in
                implementing the State's Nonpoint Source Management Program by
                achieving the milestones and goals defined in this document. For more
                information about these programs, see chapter 5 for a detailed discussion.
                These programs are implemented by the agencies described above.

     Table 4.2 Federal, State, and Local Programs and Activities for Assessment,
     Implementation and Education within the Texas Nonpoint Source Pollution
     Management Program

Program                            Lead Agency                Program Type        Funding
                                                                                  Source
NPS Grant Program                  TCEQ                       Assessment          Federal
                                   TSSWCB                     Implementation
                                                              Education


Clean Rivers Program (CRP)         TCEQ                       Assessment          Fees
                                   River Authorities          Education
                                   Councils of Government


TMDL Implementation Plans          TCEQ                       Assessment          Federal
                                   TSSWCB                     Implementation      State
                                                              Education

Superfund Program                  TCEQ                       Implementation      Federal
                                                                                  State

Brownfields Program                TCEQ                       Implementation      Federal
                                   EPA                                            State

Voluntary Cleanup Program          TCEQ                       Implementation      State
                                                                                  Fees

Corrective Action Program          TCEQ                       Implementation      State

Leaking Petroleum Storage Tank     TCEQ                       Implementation      Federal
Program                                                                           State

Floodplain Management              TCEQ                       Implementation      State

Emergency Response Program         TCEQ                       Implementation      State
                                   RRC
                                   DSHS
                                   EPA

Coastal Oil Spill Prevention and   GLO                        Implementation      State
Response                           U. S. Coast Guard

Kills and Spills Team              TPWD                       Implementation      State




60                                                          TCEQ/TSSWCB joint publication SFR-68/04
 401/404 Water Quality            Corps                   Implementation   Federal
 Certification                    TCEQ                                     State
                                  RRC
                                  TPWD

 Water Rights Permit Program      TCEQ                    Implementation   State

 Clean Marina Initiative          NOAA                    Implementation   Federal
                                                          Education

 Clean Texas Marinas              TCEQ                    Implementation   Federal
                                  GLO                     Education        State

 Small Spill Prevention Program   GLO                     Implementation   State
                                                          Education

 Solid Waste Permitting           TCEQ                    Implementation   State
 Programs

 Beneficial Use Sludge            TCEQ                    Implementation   State
 Permitting Program

 Illegal Disposal Abatement       TCEQ                    Implementation   State
 Program                                                  Education

 Texas Environmental              TCEQ                    Implementation   State
 Enforcement Task Force           TPWD                    Education
                                  GLO
                                  RRC
                                  Atty General’s Office
                                  Governor’s Office

 Citizen Complaints               TCEQ                    Implementation   State

 Citizen Environmental Watch      TCEQ                    Implementation   State


 Composting                       TCEQ                    Implementation   Federal
                                  TSSWCB                  Education        State
                                                                           Local

 Used Oil Recycling               TCEQ                    Implementation   Fees

 Household Hazardous Waste        TCEQ                    Implementation   State
 Management Program                                       Education

 Tire Disposal Program            TCEQ                    Implementation   Fees


 City of San Antonio Waste        City of San Antonio     Implementation   Local
 Management Programs                                      Education

 City of Austin Biosolids         City of Austin          Implementation   Local
 Composting                                                                Fees

 Municipal and Industrial         TCEQ                    Implementation   Fees
 Wastewater Permitting

 On-Site Sewage Facility          TCEQ                    Implementation   Fees
 Program                          Local Authorities




TCEQ/TSSWCB joint publication SFR-68/04                                              61
Texas On-Site Wastewater          Established by the         Implementation      State
Treatment Research Center         Legislature                Education

City of El Paso Reclaimed         City of El Paso            Implementation      Federal
Water System                                                                     State
                                                                                 Local
                                                                                 Fees

Brazos River Authority            Brazos River Authority     Implementation      Local
Technical Assistance Program

State Storm Water Permitting      TCEQ                       Implementation      State
Programs                          EPA

Storm Water Management            TxDOT                      Implementation      State
Guidelines

Trinity River Corridor            City of Dallas             Implementation      Local

Dallas Floodway Extension         City of Dallas             Implementation      Local
                                  Corps of Engineers

San Antonio River Tunnel          City of San Antonio        Implementation      Local

Integrated Storm Water            North Central Texas                            Local
Management Program                Council of Govts.

San Angelo Urban Nonpoint         City of San Angelo         Implementation      Federal
Source Abatement Program          UCRA                       Education           Local

Groundwater Pesticide             EPA                        Implementation      Federal
Management Plan                                                                  State

Pesticide Review Program          EPA                        Implementation      Federal

Agricultural Pesticide            TDA                        Implementation      State
Regulation                        EPA
                                  TCEQ
                                  DSHS

Structural Pest Control Board     SPCB                       Implementation      State
                                  TDA
                                  EPA

Agriculture Resource Protection   ARPA                       Implementation      State
Authority                         TDA
                                  TSSWCB
                                  TAES
                                  DSHS
                                  TCEQ
                                  SPCB

Texas Watershed Protection        TWPC                       Implementation      State
Committee                         TCEQ                       Education
                                  TSSWCB
                                  TDA

Agricultural Waste Pesticide      TCEQ                       Implementation      State
Collection Program                TCE




62                                                         TCEQ/TSSWCB joint publication SFR-68/04
 Agricultural Waste Permitting    TCEQ                   Implementation   Federal
                                  TSSWCB                                  State
                                  USDA-NRCS

 TSSWCB Water Quality             TSSWCB                 Implementation   Federal
 Management Program                                      Education        State

 Dairy Outreach Program           TCEQ                   Implementation   Federal
                                                         Education        State

 Texas Brush Control Program      TSSWCB                 Implementation   State

 Agricultural Loan Program        TWDB                   Implementation   State

 Private Lands Enhancement        TPWD                   Implementation   State
 Program                                                 Education

 Environmental Quality            USDA-NRCS              Implementation   Federal
 Incentives Program                                      Education

 Watershed Program                USDA-NRCS              Implementation   Federal

 Conservation Technical           USDA-NRCS              Implementation   Federal
 Assistance Program

 Conservation Reserve Program     Farm Services Agency   Implementation   Federal

 Agricultural Research Service    USDA                   Implementation   Federal

 TX Institute for Applied         TIAER                  Assessment       State
 Environmental Research                                  Implementation

 Texas Water Resource Institute   TWRI                   Assessment       State
                                                         Implementation

 Creekside Conservation           LCRA                   Implementation   Local
 Program                                                 Education

 Resource Development Program     TFS                    Implementation   State

 Forest Stewardship Program       USDA Forest Service    Implementation   Federal

 Forest Land Enhancement          USDA Forest Service    Implementation   Federal
 Program                                                 Education

 Site Visit Program               TCEQ                   Implementation   State

 Small Towns Environmental        TCEQ                   Implementation   State
 Program

 Texas Country Cleanup Program    TCEQ                   Implementation   State
                                  TCE
                                  TDA

 Supplemental Environmental       TCEQ                   Implementation   Local
 Projects

 Clean Texas Program              TCEQ                   Implementation   State
                                                         Education

 Texas Chemical Council           Trade Association      Implementation   Local
                                                         Education



TCEQ/TSSWCB joint publication SFR-68/04                                             63
Underground Injection Control    TCEQ         Implementation      State

Source Water Assessment and      TCEQ         Assessment          State
Protection Program                            Implementation

Texas Groundwater Protection     TCEQ         Implementation      Federal
Committee                        RRC                              State
                                 DSHS
                                 TDA
                                 TSSWCB
                                 TAGD
                                 TAES
                                 BEG
                                 TDLR

Underground Storage Tank         TCEQ         Implementation      State
Installer Licensing

Texas Department of Licensing    TDLR         Implementation      State
and Regulation

Edwards Aquifer Protection       TCEQ         Implementation      Federal
Program                                                           State

Oil and Gas Well Plugging        RRC          Implementation      Fees
Program

Wetlands Reserve Program         NRCS         Implementation      State

Texas Wetlands Conservation      TPWD         Implementation      State
Plan                                          Education

Seagrass Conservation Plan       TPWD         Implementation      State
                                              Education

Coastal Management Plan          CCC- GLO     Implementation      Federal
                                                                  State

Wetland Conservation Plan for    TPWD         Implementation      State
State-Owned Coastal Wetlands     GLO          Education

Texas Wetlands Conservation      TPWD         Implementation      Federal
Plan

Local Governments Wetland        GLO          Education           State
Plan                                          Implementation

Wetlands Assistance for          TPWD         Education           State
Landowners

Texas Coastal Management         CMP-CCC      Implementation      Federal
Program / Coordination Council                Education           State

Galveston Bay Estuary Program    GBEP         Implementation      Federal
                                              Education           State
                                                                  Local

Coastal Bend Bays & Estuaries    CBBEP        Implementation      Federal
Program                                       Education           State
                                                                  Local




64                                          TCEQ/TSSWCB joint publication SFR-68/04
 Coastal Habitat Restoration     TPWD                Implementation   State
 Program                                             Education

 BEACH Act                       GLO                 Assessment       Federal
                                                                      Local

 Gulf of Mexico Community-       GCRP                Implementation   Federal
 Based Restoration Program                                            State

 Bilge Water Reclamation         GLO                 Implementation   Federal
 Program                                             Education        State
                                                                      Local

 Coastal Texas 2020              GLO                 Implementation   Federal
                                                                      State
                                                                      Local

 Adopt -A-Beach Program          GLO                 Implementation   State
                                                     Education        Local

 Border Pollution Prevention     TCEQ                Implementation   Federal
 Initiative                                          Education        State
                                                                      Local

 Border Environment              NADB                Implementation   Federal
 Infrastructure Fund                                                  Local

 International Boundary and      IBWC                Assessment       Federal
 Water Commission                                    Implementation   Local
                                                     Education

 Economically Distressed Area    TWDB                Implementation   Federal
 Program                                             Education        State
                                                                      Local

 Colonias Initiatives Program    SOS                 Implementation   State
                                                     Education

 Border Recycles Day             TCEQ                Implementation   State
                                                     Education        Local

 Texas Watch Program             EPA                 Assessment       Federal
                                 TCEQ                Education        State
                                 Texas State Univ.

 Colorado River Watch Program    LCRA                Assessment       Federal
                                                     Education        Local

 The Aquatic Experience          UCRA                Assessment       Federal
                                                     Implementation   Local
                                                     Education

 The City of Denton Watershed    City of Denton      Assessment       Federal
 Protection Program                                  Education        Local

 Nonpoint Source Consumer        TCEQ                Education        Federal
 Education                                                            State

 Storm Drain Stenciling          TCEQ                Education        State

 Back Yard Composting and        TCEQ                Education        Federal
 Xeriscaping                                                          State


TCEQ/TSSWCB joint publication SFR-68/04                                         65
Teaching Environmental           TCEQ                    Education           State
Sciences

Environmental News You Can       TCEQ                    Education           State
Use

Publications and Videos          TCEQ                    Education           Federal
                                 TSSWCB                                      State

Environmental Hotlines           EPA                     Education           Federal
                                 TCEQ                                        State
                                                                             Local

Small Spill Prevention           GLO                     Education           Fees

Agricultural Outreach Program    TCE                     Education           Federal
                                                                             State

On-Site Wastewater Treatment     TAMU                    Education           State
Training Center                                                              Local

Don’t Mess With Texas            TxDOT                   Education           State

Keep Texas Beautiful             TxDOT                   Education           State

Texas Wildscapes Program         TPWD                    Education           State

Edwards Aquifer Authority        Edwards Aquifer         Education           Local
                                 Authority

Barton Springs/Edwards Aquifer   BSEACD                  Education           Local
Conservation District

Grow Green and Earth Camp        City of Austin          Education           Local

WET in the City                  City of Houston         Education           Local

City of Fort Worth               City of Fort Worth      Education           Local
Environmental Education

City of San Antonio Curbside     City of San Antonio     Implementation      Local
Recycling                                                Education




66                                                     TCEQ/TSSWCB joint publication SFR-68/04
CHAPTER 5 ASSESSMENT
               In order to protect water quality, we must define and measure it, identify
               the types and sources of pollution, and implement plans to protect,
               maintain, and restore water quality. The state of Texas uses a dynamic,
               flexible cycle of activities to manage water quality. Steps in the cycle
               include:

                   !   Standards and Planning: setting standards for surface
                       water quality and revising or formulating monitoring plans;

                   ! Monitoring: collecting data to monitor the condition of
                     surface waters;
                   ! Assessment and Targeting: assessing data to determine
                     water quality status and to identify any impairments;
                   ! Developing Strategies: for protecting, improving, or
                     restoring water quality with pollutant source controls and
                     practices; and
                   ! Implementing Pollution Controls: for both point and non-
                     point sources and evaluating progress, which may lead
                     back to revising those plans or formulating new ones.

               Implementing this cycle of activities involves coordination between many
               different entities and programs around the state of Texas. The
               development of implementation plans and the implementation of those
               plans will be discussed in Chapter 7.

Surface Water
                                                   Texas has a large number of water bodies.
Assessment                                         There are 11,247 streams and rivers large
                                                   enough to be named, with a total combined
               The major surface waters of         length of 191,228 miles. However, only
               Texas have been divided into        40,194 miles of streams and rivers (21%) are
               classified water segments. A        considered perennial, meaning that they have
               single river may consist of         sustained flow throughout the year. Texas
               several classified segments.        also has 9,993 inland reservoirs and lakes 10
                                                   acres or larger in size that together cover
               The term segment refers to a        approximately 1,994,600 acres. Of those,
               defined, basic unit for             211 are major reservoirs which are greater
               assigning site-specific             than 5,000 acre-feet each. Texas bays and
               standards, and is intended to       estuaries cover approximately 2,393 square
                                                   miles along a coastal shoreline that stretches
               have relatively common
                                                   624 miles in length. The Gulf of Mexico,
               biological, chemical,               within Texas' jurisdiction covers
               hydrological, and physical          approximately 3,879 square miles. In the
               characteristics. Segments will      conterminous United States, Texas ranks
               also normally exhibit common        first in total square miles covered by fresh
                                                   water and saltwater with 4,959.
               reactions to external stresses
               such as discharges or


TCEQ/TSSWCB joint publication SFR-68/04                                                        67
         pollutants. The establishment of segments facilitates planning activities,
         issuance of permits, and allocation of grant funds necessary to implement
         various sections of the federal Clean Water Act. Texas currently
         recognizes 225 stream segments, 100 reservoir segments, and 48 estuary
         segments. The Gulf of Mexico is treated as one segment. Texas surface
         water quality standards and the assessment of water quality are based on
         these classified segments.

Protecting Surface Water Quality
         The TCEQ Water Quality Standards Team is responsible for establishing
         and revising standards to protect surface water quality. The Texas Surface
         Water Quality Standards (TSWQS), §30, Chapter 307 of the Texas
         Administrative Code, recognize the regional and geologic diversity of the
         state. Appropriate water uses are designated for each of the classified
         segments. Numerical and narrative criteria established in the TSWQS
         provide a basis for assessing water quality, evaluating use support, and
         managing point and nonpoint source loadings in Texas surface waters. The
         TSWQS are designed to:

         # establish numerical and narrative criteria for water quality
           throughout the state;
         # provide a basis on which TCEQ regulatory programs can
           establish reasonable methods to implement and attain the
           state's standards.

         Water quality standards are protective; that is, if one or more water quality
         standard is not being met in a classified segment, there is some possibility
         that water quality may be inadequate to meet the designated uses. For
         example, a water body fails to meet the dissolved oxygen standard
         established to support aquatic life use, yet no fish kills are observed.
         However, a decline in the variety or number of aquatic species and an
         increased probability of fish kills may exist.

         Uses
         Four general categories of use are defined in the Texas Surface Water
         Quality Standards: aquatic life use, contact recreation, domestic water
         supply, and fish consumption.

         Aquatic Life Use
         The standards associated with this use are designed to protect plant and
         animal species that live in and around the water. They establish optimal
         conditions for the support of aquatic life and define indicators used to
         measure whether these conditions are met. Some pollutants or conditions
         that may jeopardize this use include low levels of dissolved oxygen, toxic
         substances such as metals or pesticides, or excess turbidity.



68                                              TCEQ/TSSWCB joint publication SFR-68/04
               Contact Recreation
               The standard associated with this use measures the level of certain
               bacteria in water to estimate the relative risk of swimming or other water
               sports involving direct contact with the water. It is possible to swim in
               water that does not meet this standard without becoming ill; however, the
               probability of becoming ill is higher than it would be if bacteria levels
               were lower.

               Domestic Water Supply
               Domestic water supply consists of two subcategories: Public Water
               Supply and Aquifer Protection.

               Public Water Supply. Standards associated with this use indicate whether
               water from a lake or river is suitable for use as a source for a public water
               supply system. Source water is treated before it is delivered to the tap and
               must meet a separate set of standards established for treated drinking
               water. Indicators used to measure the safety or usability of surface water
               bodies as a source for drinking water include the presence or absence of
               substances such as metals or pesticides. Concentrations of salts, such as
               sulfate or chloride, are also measured, since treatment to remove high
               levels of salts from drinking water is expensive.

               Aquifer Protection. Segments designated for aquifer protection are
               capable of recharging the Edwards Aquifer. The principal purpose of this
               use designation is to protect the quality of water infiltrating and
               recharging the aquifer. The designation for aquifer protection applies only
               to those designated portions of the segments that are on the recharge zone,
               transition zone, or contributing zone of the Edwards Aquifer.

               Fish Consumption
               The standards associated with this use are designed to protect the public
               from consuming fish or shellfish that may be contaminated by pollutants.
               The standards identify levels at which there is a significant risk that
               certain toxic substances dissolved in water may accumulate in the tissue of
               aquatic species. However, because pollutant concentrations in water do
               not always predict when toxic substances will accumulate in fish, the state
               also conducts tests on fish and shellfish tissue to determine if there is a
               risk to the public from consuming fish caught in state waters. The
               standards also specify bacterial levels in marine waters to assure that
               oysters or other shellfish that may accumulate bacteria from the water are
               safe for commercial harvest, sale, and consumption by the public.

               Water Quality Indicators
               Specific indicators of water quality such as bacteria, dissolved solids, and
               organics are also described in the standards. Several different parameters
               may be measured to determine whether a water body meets its designated



TCEQ/TSSWCB joint publication SFR-68/04                                                   69
     uses. Some of the most common are listed here, with an explanation of
     why they are important to the health of a water body.

     Fecal Coliform, E. Coli, and Enterococci Bacteria
     These bacteria are measured to determine the relative risk of swimming or
     other water sports. These bacteria are found in the waste of warm-blooded
     animals. Their presence may indicate that pathogens also in these wastes
     may be reaching a body of water from sources, such as, inadequately
     treated sewage, improperly managed animal waste from livestock, pets in
     urban areas, or failing septic systems.

     Dissolved Oxygen
     The concentration of dissolved oxygen is a single, easy-to-measure
     characteristic of water that positively correlates with the abundance and
     diversity of aquatic life in a water body. A water body that can support
     diverse, abundant aquatic life is a good indication of high water quality.
     However, highly variable dissolved oxygen concentrations may indicate a
     related problem associated with an excess of nutrients in water. High
     concentrations of nutrients in water may stimulate excessive growth of
     vegetation which may result in very high dissolved oxygen concentrations
     during the day and very low dissolved oxygen concentrations at night.
     These conditions may have a negative impact on aquatic life use.

     Dissolved Solids
     High levels of dissolved solids, such as chloride and sulfate, can cause
     water to be unusable, or simply too costly to treat for the drinking water
     supply use. Changes in dissolved solids concentrations also adversely
     affect the water quality for aquatic life use.

     Metals
     Concentrations of metals can pose a threat to drinking water supplies and
     human health. Eating fish contaminated with metals can cause these toxic
     substances to accumulate in tissue, posing a risk to human health. Metals
     also pose a threat to livestock and aquatic life. Potentially dangerous
     levels of metals and other toxic substances are identified through chemical
     analysis of water, sediment, and fish tissue.

     Organics
     Toxic substances from pesticides and industrial chemicals, called
     organics, pose the same concerns as metals. Polychlorinated biphenyls
     (PCBs), for example, are industrial chemicals that are toxic and probably
     carcinogenic. Although banned in the United States in 1977, PCBs remain
     in the environment, and they accumulate in fish and human tissues when
     consumed. Potentially dangerous levels of toxic substances are identified
     through chemical analysis of water, sediment, and fish tissue.




70                                          TCEQ/TSSWCB joint publication SFR-68/04
               Fish Consumption Advisories and Closures
               The Texas Department of State Health Services (DSHS) conducts
               chemical testing of fish tissue to determine whether there is a risk to
               human health from consuming fish or shellfish caught in Texas streams,
               lakes, and bays. Fish seldom contain levels of contaminants high enough
               to cause an imminent threat to human health, even to someone who eats
               fish regularly. Risk increases for those persons who regularly consume
               larger fish and predatory fish from the same area of contaminated water
               over a long period of time. When a fish consumption advisory is issued, a
               person may legally take fish or shellfish from the water body under the
               advisory, but should limit how much fish he or she eats, and how often.
               When a fish consumption closure is issued, it is illegal to take fish from
               the water body.

Data Collection
               Better understanding the relationship between land and water starts with
               monitoring the condition of water quality. The mission of the TCEQ
               Surface Water Quality Monitoring (SWQM) program is to characterize the
               water quality of the ambient surface waters of the state.

               Monitoring activities can be grouped into five categories: routine
               monitoring, systematic monitoring, targeted monitoring, permit support
               monitoring and effectiveness monitoring:

               Routine monitoring is designed to assess the status and trends of overall
               water quality throughout the state, and for each river basin. Data are
               collected using a monitoring network of key sites on the major water
               bodies in each basin on a regular basis. Monitoring sites may also include
               smaller water bodies to support characterization of ecoregions and/or
               basin-specific conditions.

               Systematic monitoring focuses on evaluating subwatersheds and
               unclassified water bodies. Its purpose is to investigate and detect areas of
               concern, and identify issues that require further study. It also includes
               monitoring at sites to check the status of water bodies (identify
               improvements or concerns). This monitoring strategy rotates resources
               around the river basin to gather information on water bodies that would
               not normally be included in the routine monitoring program.

               Targeted monitoring is conducted on water bodies where there is reason
               to believe there is a threat or a concern for water quality, to establish the
               extent and degree of an impairment, or to determine the best strategy for
               restoring water quality. Sometimes called special studies, targeted
               monitoring activities usually involve intensive periods of data collection at
               sites where routine or systematic monitoring identified impacts, concerns,
               or impaired uses.



TCEQ/TSSWCB joint publication SFR-68/04                                                  71
     Permit support monitoring is used to address specific areas where
     additional information is need to determine appropriate limits for
     wastewater discharges. This may include studies to gather site-specific
     information for use in developing permits.

     Effectiveness monitoring is conducted to evaluate whether management
     practices, regulatory measures, and watershed improvement and
     restoration plans are producing the desired results.

     Monitoring Coordination
     The CRP plays a key role in the TCEQ’s yearly integration of these
     various monitoring needs into a coordinated monitoring schedule for the
     entire state. The schedule shows all surface water monitoring being
     conducted by the TCEQ or under its contracts or cooperative agreements
     for each planning year.

     Planning and development of the coordinated monitoring schedule takes
     place from January through May preceding the state fiscal year for which
     the plan is developed. To support coordinated monitoring, the TCEQ has
     developed guidance for selecting sites and for sampling methods for
     routine, systematic, and targeted monitoring. The coordinated monitoring
     schedule is hosted by the Lower Colorado River Authority, a CRP
     Planning Agency, on its Web site at http://cms.lcra.org/.

     Texas Commission on Environmental Quality
     Surface Water Quality Monitoring Program
     The TCEQ's Surface Water Quality Monitoring (SWQM) Program is
     coordinated by the Surface Water Quality Monitoring Team and by staff
     in the TCEQ's 16 regional offices. Routine monitoring and special studies
     are conducted by SWQM personnel.

     Finished drinking water data is collected by the TCEQ’s Drinking Water
     Quality Program. Additional supporting information is provided by the
     Source Water Assessment and Protection Program (discussed in Chapt 5).

     Clean Rivers Program
     The CRP is a collaboration of 15 regional water agencies with the TCEQ.
     It is a unique, water quality monitoring, assessment, and public outreach
     program that is funded by state fees assessed on the number and size of
     wastewater treatment plants and surface water right permittees that reside
     within each river basin. The CRP provides the opportunity to approach
     water quality issues at the local level through coordinated efforts among
     diverse agencies, various programs, and the public.

     Cost-effective watershed management decisions must be based on
     scientifically valid and complete assessments of water quality conditions
     and contributing causes of impact. Water bodies should be selected upon

72                                         TCEQ/TSSWCB joint publication SFR-68/04
               the importance of the resource, risk from pollution, and with input from
               the Steering Committees (discussed in Chapter 4). Monitoring activities
               include fixed monitoring, systematic monitoring, targeted monitoring, and
               special studies.

               United States Geological Survey
               The United States Geological Survey (USGS) also conducts a large
               amount of monitoring statewide and much of the data are utilized by the
               TCEQ. The USGS surface water collection network in Texas is primarily
               established to monitor stream flow continuously at many permanent sites.
               Field measurements, routine water chemistry, and metals in water are also
               collected at many of the fixed sites. Sites are chosen to represent a mix of
               natural and human factors that influence water quality. Chemical variables
               are then related by the USGS to hydrologic conditions to interpret
               water-resource conditions and meet water quality management needs.
               Estimation of point and nonpoint source loadings, stormwater
               management, and chemical-contaminant controls are some of those needs.

               Other Sources
               Additional data from other state and federal agencies, cities, and other
               monitoring groups can be assessed in the evaluation of water quality if the
               data meet clearly defined acceptance and time line criteria established by
               the TCEQ. Previous contributors of data of this type include the Texas
               Department of State Health Services (DSHS), Texas Parks and Wildlife
               Department (TPWD), Texas Institute for Applied Environmental Research
               (TIAER), and Texas Watch.

Assessing the Data
               The current condition of Texas surface water resources and the
               effectiveness of protection and restoration activities are evaluated by
               assessing the available data. The physical, chemical, and biological
               characteristics of aquatic systems are assessed in relation to human health
               concerns, ecological conditions, and designated uses. Water quality data
               may be used to:

               #   characterize existing conditions,
               #   evaluate spatial and temporal trends,
               #   determine water quality standards compliance,
               #   identify emerging problems, and
               #   evaluate the effectiveness of water quality control programs.

               Water Quality Inventory
               The TCEQ evaluates the condition of the state's water bodies on a periodic
               basis as required by CWA§305(b). The results of this evaluation are
               contained within the Texas Water Quality Inventory and 303(d) List which
               is prepared by the TCEQ's SWQM team and submitted to the EPA for

TCEQ/TSSWCB joint publication SFR-68/04                                                 73
             approval. One of five categories is assigned to each parameter and area of
             a water body, known as an assessment unit, to provide more information
             to the public, EPA, and agency staff about water quality status,
             management plans, and management activities. When an assessment unit
             has multiple parameters, the highest category is assigned to the assessment
             unit. When a water body has multiple assessment units, an overall
             category is assigned to the entire water body. The table below summarizes
             the categorization of water bodies in Texas. Categories four and five
             represent the list of impaired water bodies as required by CWA§303(d).

     Table 5.1 Categories of the Texas Water Quality Inventory and 303(d) List

       Category 1           Attaining the water quality standard and no use is threatened.

       Category 2           Attaining some of the designated uses; no use is threatened;
                            and insufficient or no data and information are available to
                            determine if the remaining uses are attained or threatened.

       Category 3           Insufficient or no data and information to determine if any
                            designated use is attained.

       Category 4           Standard is not supported or is threatened forone or more
                            designated uses but does not require the development of a
                            TMDL.

             Category 4a    TMDL has been completed and approved by EPA.

             Category 4b    Other pollution control requirements are reasonably expected
                            to result in the attainment of the water quality standard in the
                            near future.

             Category 4c    Nonsupport of the water quality standard is not caused by a
                            pollutant.

       Category 5           Category 5 is the 303(d) list. The water body does not meet
                            applicable water quality standards or is threatened for one or
                            more designated uses by one or more pollutants.

             Category 5a    A TMDL is underway, scheduled, or will be scheduled.

             Category 5b    A review of the water quality standards will be conducted
                            before a TMDL is scheduled.

             Category 5c    Additional data and information will be collected before a
                            TMDL or review of the water quality standard is scheduled.



             Nonpoint Source Assessment
             The CWA §319(a) assessment focuses only on those waters which have
             been identified as being degraded, at least in part, by nonpoint source
             pollution. Texas' CWA §319(a) assessment of impaired waters is based on
             the Texas Water Quality Inventory and 303(d) List. In order to address the
             most current priorities for Texas and have a NPS program based on the
             most current information, the latest state approved Texas Water Quality
             Inventory and 303(d) List will serve as the state's 319(a) assessment.



74                                                      TCEQ/TSSWCB joint publication SFR-68/04
               NPS-degraded surface waters appearing in the report will be targeted by
               the state for additional NPS monitoring and restoration activities.

               With regards to CWA §319(h) grant funding, priority for assessment
               dollars is given to those water bodies that fall under categories 5a, 5b, and
               5c of the Texas Water Quality Inventory and 303(d) List. Assessment
               dollars may also be used to fund development of TMDL Implementation
               Plans or Pollution Reduction Strategies for water bodies in categories 4a,
               4b, and 4c. These plans are discussed in Chapter 6.

               Basin Status Reports
               Each CRP partner agency collects information on potential sources of
               pollution throughout its planning area or river basin. This information is
               used to correlate water quality to the environmental factors that influence
               it, such as soils, climate, hydrology, wastewater treatment plans, urban
               runoff, and agricultural runoff. An annual basin status report, the Basin
               Highlights Report, is produced by each regional water agency, and
               provides an overview of water quality issues and the status of ongoing
               projects/tasks. A detailed and in-depth data analysis is provided for each
               basin in the Basin Summary Report once every five years. This report
               provides trend analysis, spatial analysis (correlating environmental factors
               to water quality), an explanation for why certain water quality issues exist,
               and recommendations for addressing persistent water quality problems.
               The CRP strives to report water quality data in a user-friendly format to
               inform the public. The information contained in these reports is utilized by
               the TCEQ in the development of the Texas Water Quality Inventory and
               303(d) List, subsequent statewide rankings, and prioritization of
               management strategies.


Total Maximum Daily Loads (TMDLs)
               A TMDL, or Total Maximum Daily Load, is a tool for achieving water
               quality standards and is based on the relationship between pollution
               sources and in-stream water quality conditions. TMDLs are developed to
               provide an analytical basis for planning and implementing pollution
               controls, land management practices, and restoration projects needed to
               protect water quality. The TMDL establishes the allowable loadings or
               other quantifiable parameters for a water body and thereby provides the
               basis to establish water quality-based controls. These controls provide the
               pollution reduction necessary for a water body to meet water quality
               standards.

               CWA§303(d) and its implementing regulations (40 CFR §130.7) require
               states to identify waters that do not or will not meet applicable water
               quality standards after the application of technology-based or other
               required controls, and to establish TMDLs for pollutants that are causing
               non-attainment of water quality standards. For listed waters, States must
               develop TMDLs allowing for seasonal variations and an appropriate

TCEQ/TSSWCB joint publication SFR-68/04                                                  75
     margin of safety. A TMDL is a quantitative assessment of water quality
     problems, contributing sources, and load reductions or control actions
     needed to restore and protect individual water bodies.

     TMDLs address all significant stressors which cause water body use
     impairment, including: point sources (e.g., sewage treatment plant
     discharges), nonpoint sources (e.g., runoff from fields, streets, range, or
     forest land), and naturally occurring sources (e.g., runoff from undisturbed
     lands). A TMDL is the sum of the individual wasteload allocations for
     point sources, load allocations for nonpoint sources and natural
     background pollutants, and an appropriate margin of safety. TMDLs may
     address individual pollutants or groups of pollutants, as long as they
     clearly identify the links between the water body use impairment, the
     causes of the impairment, and the load reductions needed to remedy the
     impairment.

     Public participation is an integral part of the TMDL process. Therefore,
     the TMDL process provides many opportunities for the public to
     participate. Listed below are a few of the ways the public can participate
     in the TMDL process:

     #    In most cases a watershed committee is established to provide local
          input on TMDL projects. The public is encouraged to work on these
          committees or attend these committee meetings.
     #    TMDL meetings are open to the public. Public notices are provided
          for these meetings. These meetings provide an opportunity to make
          comments and get answers to questions.
     #    The public is given a chance to review and provide comments on the
          development of the current CWA§303(d) list for the state.
     #    Before the state adopts a TMDL, a formal public comment period is
          provided in which the draft TMDL is made available, a public
          comment hearing is conducted, and responses to all comments are
          published.
     #    Resources are available to assist the public's participation in the
          TMDL process. The TCEQ website provides information about the
          TMDL program, the status of individual TMDL projects, and links
          to other TMDL-related websites. The TCEQ has also published
          printed materials such as Developing Total Maximum Daily Load
          Projects in Texas: A Guide for Lead Organizations, which provides
          valuable information on the TMDL process in Texas.

     The development of TMDLs begins with the review of existing data
     and/or the collection of additional data related to water quality, point
     source discharge, precipitation, soils, geology, topography, and land use
     (construction, agriculture, mining, etc.) within the watershed. Next,
     models or other analytical methods are used to calculate pollutant loads
     and the water quality response of the receiving water. The appropriate


76                                         TCEQ/TSSWCB joint publication SFR-68/04
               analytical method/model is selected based on the pollutants of concern,
               the amount of data available, and the type of water body. If a computer
               model is selected, data collected from the watershed may be used to
               calibrate and verify the model so that the computed values match those of
               known field data. The model can then be used to develop different
               scenarios, by first determining the amount of specific pollutants each
               source contributes, then calculating the amount each pollutant needs to be
               reduced, and finally specifying how the reduced pollutant load would be
               allocated among the different sources. In some cases, TMDLs can be
               based on readily available information and studies using simple analytical
               efforts to provide a basis for stressor assessment and implementation
               planning. In other cases, more complex, data intensive computer
               simulations are required.

               Upon completion of data collection and analyses, a TMDL report is
               developed adopted by the state after a thorough public review and
               comment period. The state-adopted TMDL is submitted to EPA for review
               and approval. The TMDL Report consists of six component parts, each of
               which is presented and discussed below.

               Problem Statement: The TMDL report includes an indication whether
               the segment is on the latest CWA§303(d) list and its priority, applicable
               water quality standards are identified, the pollutant or stressor of concern
               is identified, and the beneficial use impairment of concern is described.
               Historical water quality data from the impaired water body and its
               contributing watershed is presented and assessed. The TMDL report
               describes the characteristics of the water body such as drainage area,
               length, flow rates, depth, etc. The watershed is described including
               characterization of soil types, land uses, population, wildlife resources,
               and topography. The TMDL report includes a general description of the
               location of the impaired water body including information about the river
               basin, ecoregion, and political jurisdictions in which it is located.

               Endpoint Identification: Numeric water quality target(s) for the TMDL
               are identified in the TMDL report, and the basis for target(s) as
               interpretation of water quality standards is documented. These targets
               identify the specific instream (and potentially watershed) goals or
               endpoints for the TMDL which equate to attainment of the water quality
               standard. In some cases, multiple indicators and associated numeric target
               values may be needed to interpret an individual water quality standard. In
               addition, some TMDLs may incorporate multiple numeric targets to
               account for seasonal differences in acceptable pollutant levels in a
               particular water body. In many cases where applicable standards are
               expressed in numeric terms, it is appropriate to set the numeric target
               equal to the numeric water quality standard.

               In situations where applicable water quality standards are expressed in
               narrative terms, it is necessary to develop a quantitative interpretation of


TCEQ/TSSWCB joint publication SFR-68/04                                                   77
     narrative standards. Since a TMDL is an inherently quantitative analysis,
     it is necessary to determine appropriate quantitative indicators of
     the water quality problem of concern in order to calculate a TMDL. It is
     sometimes possible to supplement instream indicators and targets with
     watershed targets-- measures of conditions within the watershed which are
     directly associated with water bodies meeting their water quality
     standards for the pollutant(s) of concern.

     Source Analysis: Point, nonpoint, and background sources of pollutants
     of concern are described in the TMDL report, including the magnitude and
     location of sources. The TMDL document demonstrates all sources have
     been considered. The TMDL document provides estimates of the amounts
     of pollutants entering the receiving water of concern or, in some cases, the
     amount of pollutant that is bioavailable based on historic loadings stored
     in the aquatic environment. These pollutant sources or causes of the
     problem are documented based on site-specific studies, literature reviews
     or other sources of information. Sources can be categorized in many ways,
     including but not limited to discharge source, land use category,
     ownership, pollutant production process (e.g. sedimentation processes),
     and/or tributary watershed areas. The source analysis discusses the data
     and methods used to estimate source contributions.

     Linkage Between Pollutant Sources and Water Quality in the
     Receiving Water: The TMDL document describes the relationship
     between numeric target(s) and the identified pollutant sources, leading to
     an estimate of the total assimilative capacity (loading capacity) of the
     waterbody for the pollutant of concern. The loading capacity is the critical
     quantitative link between the applicable water quality standards (as
     interpreted through numeric targets) and the TMDL. Thus, a maximum
     allowable pollutant load is estimated to address the site-specific nature of
     the impairment. The loading capacity reflects the maximum amount of a
     pollutant that may be delivered to the water body and still achieve water
     quality standards. A number of different loading capacity approaches can
     be used as part of TMDLs.

     The loading capacity section discusses the methods and data used to
     estimate loading capacity. A range of methods can be used from predictive
     water quality models to inferred linkages based on comparison of local
     reference conditions with existing conditions in the watershed of concern.
     In some cases, loading capacity may vary within the watershed of concern
     (e.g., toxics loading capacity may be higher in areas with high water
     mixing rates than in backwater areas with poor water exchange), and in
     different time periods (e.g. nutrient loading capacity may be lowest during
     high temperature summer low flow periods). The basis for spatial and
     temporal variations in loading capacity estimates is discussed.

     Margin of Safety: A margin of safety is included in the TMDL report to
     account for uncertainty in the understanding of the relationship between


78                                         TCEQ/TSSWCB joint publication SFR-68/04
               pollutant discharges and water quality impacts. The TMDL document
               describes an explicit and/or implicit margin of safety for each pollutant.
               An explicit margin of safety can be provided by reserving (not allocating)
               portion of the loading capacity identified for the water body for the
               pollutant of concern. An implicit margin of safety can be provided by
               making and documenting conservative assumptions used in the TMDL
               analysis. The TMDL report provides an explanation of the basis for
               margin of safety which shows why it is adequate to account for
               uncertainty in the TMDL. Where an implicit margin of safety is provided,
               the report includes a discussion of sources of uncertainty in the analysis
               and how individual analytical assumptions or other provisions adequately
               account for these sources of uncertainty.

               Load Allocations: The TMDL report identifies the total allowed
               pollutant amount and its components: appropriate wasteload allocations
               for point sources; load allocations for nonpoint sources; load allocation for
               an appropriate margin of safety; and, natural background. Allocation of
               allowable loads or load reductions among different sources of concern are
               determined. These allocations are usually expressed as wasteload
               allocations to point sources and load allocations to nonpoint sources.
               Allocations can be expessed in terms of mass loads or other appropriate
               measures. The TMDL equals the sum of allocations and cannot exceed the
               loading capacity. Load allocations for nonpoint sources are generally
               expressed as specific allocations for "gross allotments" to nonpoint source
               discharger categories. Separate nonpoint source allocations are established
               for background loadings. Allocations may be based on a variety of
               technical, economic, and political factors. The methodology used to set
               allocations is discussed.

Monitoring the Results
               There are many different programs in place throughout the state that are
               responsible for conducting implementation activities. Upon implementing
               a best management practice (BMP) or other implementation activity it is
               necessary to determine the effectiveness of the activity. Data collected
               after implementation must be compared to data collected prior to
               implementation to determine effectiveness. These data may be historical,
               like that collected for a special study, or collected as part of the project
               tasks prior to implementation. In some cases, routine monitoring can be
               used to evaluate effectiveness. In other cases, it will be necessary to
               collect data in a specific project area to evaluate the effectiveness of the
               implementation activities. Certain types of BMPs or implementation
               activities will not show immediate results. Effectiveness and water quality
               improvements will be determined over time, and not immediately upon
               implementation. More about implementation activities will be discussed
               later in this document.




TCEQ/TSSWCB joint publication SFR-68/04                                                  79
Groundwater Assessment
         Groundwater supplies about 58% of all water used by Texans for
         domestic, municipal, industrial, and agricultural purposes. Approximately
         36% of the water used for municipal supplies, and 75% of the water used
         for agricultural purposes is obtained from groundwater sources. This
         groundwater is produced from aquifers, which are underground layers of
         rock with water stored in pore spaces, cracks or voids. Major aquifers are
         defined as producing large quantities of water in a comparatively large
         area of the state, whereas minor aquifers produce significant quantities of
         water within smaller geographic areas or small quantities in large
         geographic areas. Minor aquifers are very important as they may
         constitute the only significant source of water supply in some regions of
         the state.

         Nine major aquifers and twenty-one minor aquifers have been delineated
         within the state. These major and minor aquifers underlie approximately
         76% of the state's surface area. Other undifferentiated, local aquifers may
         represent the only source of groundwater where major or minor aquifers
         are absent. These local aquifers, which provide groundwater that is used
         for all purposes, vary in extent from very small to several hundred square
         miles.

Measuring Groundwater Quality
         The Texas Water Development Board (TWDB) is authorized by the Texas
         Water Code to conduct studies and map the state's water resources. The
         TWDB has identified the state's aquifers, and delineated the boundaries of
         major and minor aquifers based on yields and significance of aquifer
         production. These maps depict the extent of each aquifer, including where
         it is exposed at the surface, which is commonly where recharge occurs, as
         well as, the portion of the aquifer underground. For most aquifers, a Total
         Dissolved Solids (TDS) concentration of 3,000 milligrams per liter is used
         to mark the boundary of usable quality water when mapping aquifers. The
         boundary of the Edwards Aquifer, for mapping purposes, is defined by a
         TDS concentration of 1,000 milligrams per liter.

         TDS are constituents in groundwater dissolved from the surrounding rock
         and are the basis for the Texas Groundwater Protection Committee's
         (TGPC) groundwater classification system.

         Under this groundwater classification system, four classes are defined
         based on quality as determined by TDS concentration. Through
         classification, groundwater can be categorized, and protection or
         restoration decisions can be made according to the water quality present or
         potential use of the groundwater.




80                                             TCEQ/TSSWCB joint publication SFR-68/04
Table 5.2 TGPC Groundwater Classification System

 CLASS                   QUALITY*                           EXAMPLES OF USE
 Fresh                   Zero to 1,000                      Drinking and all other uses

 Slightly Saline         More than 1,000 to 3,000           Drinking (if freshwater is unavailable),
                                                            livestock watering, irrigation, industrial,
                                                            mineral extraction, oil and gas production

 Moderately Saline       More than 3,000 to 10,000          Potential/future drinking and limited livestock
                                                            watering and irrigation (if fresh or slightly
                                                            saline water is unavailable); industrial, mineral
                                                            extraction, oil and gas production

 Very Saline to Brine    More than 10,000                   Mineral extraction, oil and gas production

*Concentration range of total dissolved solids in milligrams per liter.



                   The state has developed surface water quality standards applicable to
                   certain water bodies that are protective of groundwater affected by surface
                   water. For the recharge zone of the Edwards Aquifer, the state has
                   developed water quality protection measures that specify groundwater
                   recharge as a "designated use" in the state's surface water quality
                   standards. The state has not developed standards for pollutant discharge to
                   groundwater, although, the legislatively mandated (TWC §26.401) goal
                   of non-degradation of use guides the priorities of groundwater programs.
                   However, comparison of measured values for constituents of concern in
                   major and minor aquifers with TDS concentration of 3000 mg/L, or less,
                   against adopted Safe Drinking Water Act (SDWA) Maximum
                   Contaminant Levels (MCL's) provides an effective method of evaluating
                   groundwater quality in aquifers for the intended use of drinking water.

Aquifer Vulnerability
                   Since groundwater contamination can remain latent for a lengthy period of
                   time, and since groundwater is difficult to clean up once it has become
                   impacted, the majority of Texas groundwater programs focus on
                   prevention of contamination, rather than remediation. This is true of
                   point-source regulatory and permitting
                   programs, as well as NPS related programs            DRASTIC
                   like the Pesticides in Groundwater Program           D - Depth to water
                   conducted under the Federal Insecticide,             R - annual Recharge
                   Fungicide and Rodenticide Act (FIFRA) by             A - Aquifer media
                                                                        S - Soil media
                   TCEQ.
                                                                                  T - Topography
                                                                                  I - vadose zone Impact
                   Previous NPS assessments have contained an                     C - hydraulic
                   aquifer vulnerability ranking system based on                  Conductivity
                   the average DRASTIC index for the aquifers
                   of Texas. This ranking system is used
                   (Appendix D), because it is a reasonable method of determining the

TCEQ/TSSWCB joint publication SFR-68/04                                                                     81
         relative vulnerability of aquifers to surface activities, and by extension,
         possible NPS contamination.

Data Collection
         The TWDB has the responsibility for collecting and maintaining an
         inventory of ambient groundwater conditions throughout the state. The
         TGPC relies upon ambient monitoring data from the TWDB for state
         groundwater quality information. The TWDB performs ambient
         groundwater monitoring on water wells in a particular number of Texas
         aquifers each year, so that all major and minor aquifers of the state are
         monitored approximately every five years. The TWDB maintains a
         database of ambient groundwater monitoring data for the state from over
         51,000 water wells and is supplemented by data from the United States
         Geological Survey (USGS), the Bureau of Economic Geology (BEG), and
         the TCEQ. Also, many of the groundwater conservation districts
         throughout the state have well-developed monitoring programs that are
         primarily intended to monitor the volume of water in an aquifer, but also
         collect groundwater quality information. Data are maintained by the
         groundwater conservation district, and generally reported to the TWDB
         for inclusion in their ambient groundwater database.

Assessing the Data
         For the groundwater portion of the Texas Water Quality Inventory and
         303(d) List, ambient groundwater quality data are drawn from the TWDB
         database. The number of wells reporting values for constituents of concern
         above the MCL, or between the Minimum Detection Level (MDL) and the
         MCL are determined, and these values are posted in a table for each
         aquifer, along with the total number of wells sampled in that aquifer.

         The data are augmented by the data taken from the annual Joint
         Groundwater Monitoring and Contamination Report that lists
         groundwater contamination cases of the regulatory programs of the
         TCEQ, Railroad Commission of Texas (RRC) and groundwater
         conservation districts. TCEQ reports data for groundwater contamination
         related to industrial and hazardous waste sites, municipal solid waste sites,
         leaking underground and above ground storage tanks, public drinking
         water supplies, wastewater disposal facilities, and other occurrences of
         contamination that may not be directly linked to a specific source or
         program. The RRC collects and reports data regarding groundwater
         contamination that may be related to oil and gas well drilling and
         production activities, transmission (pipeline) spills, and surface mining
         operations. Groundwater conservation districts typically monitor only
         those groundwater contamination cases that are of specific interest to the
         individual district, or those that do not fall under the regulatory umbrella
         of other agencies.
         In 1996, the Texas Groundwater Protection Committee (TGPC) began the
         groundwater quality assessment process, through a partnership of the

82                                               TCEQ/TSSWCB joint publication SFR-68/04
               TCEQ and the TWD, two of its member agencies. Assessment of all thirty
               aquifers was completed in 2002. Each aquifer in the 2002 Water Quality
               Inventory and 303(d) List is represented with a map showing the locations
               of water wells sampled and nitrate analyses exceeding EPA drinking water
               standards. Tables are included that show the parameters assessed against
               EPA drinking water standards, as well as, summaries of the sources and
               types of groundwater contamination at regulated facilities. This
               information is compiled from data contained in the Joint Groundwater
               Monitoring and Contamination Report.

               Nitrate is readily soluble and mobile in water, and is considered one of the
               major human health concerns in drinking water. Coincidentally, nitrate
               concentration is an indicator of NPS pollution in groundwater, because it
               can move readily through the soil and vadose zone, entering aquifers by
               means of percolation. The vadose zone is the stratigraphic region between
               the soil surface and the water table, or the unsaturated zone. Nitrate in
               surface water indicates the potential for groundwater contamination.

               Since no water quality standards have been designated for groundwater,
               an assessment standard of degradation or impairment with respect to use
               must be defined here. For the purposes of the NPS assessment, any
               measurements of groundwater quality taken from the aquifers listed in the
               Texas Water Quality Inventory and 303d List that exceed the Maximum
               Contaminant Levels (MCL) for nitrate in drinking water, are considered to
               be an indicator of either nonpoint source degradation or impairment, with
               respect to existing or potential use.

               Constituents of concern that are above the Minimum Detection Level
               (MDL), but below the MCL, should be watched carefully over several
               report cycles. An increase in the number of detections of a constituent can
               signal a growing problem, even though the MCL has not been exceeded.
               Groundwater that indicates degradation with respect to existing or
               potential use will be targeted by the state for additional NPS monitoring
               and restoration activities.

               The ranking for priority waterbodies that appear in Table B.2 are averaged
               and do not reflect the intrinsic vulnerability of outcrop areas and/or known
               areas where recharge is occurring. For this reason, spatial examination of
               contaminant distribution is vital to any true assessment of aquifer quality
               or vulnerability prediction.

               Table B.2 ranks the Seymour, Edwards - Balcones Fault Zone in the San
               Antonio area, and Edwards - Balcones Fault Zone in the Austin area, as
               aquifers having "high" vulnerability rankings. The northern extent of the
               Ogallala, and Cenezoic Pecos Alluvium received "low" or low "medium"
               rankings, and the Hueco-Mesilla Bolsons rank "low" in the DRASTIC
               based aquifer vulnerability ranking scheme. The Joint Groundwater
               Monitoring and Contamination Reports document a number of significant


TCEQ/TSSWCB joint publication SFR-68/04                                                 83
         impacts to the usable groundwater zone of the Bolsons, and related
         investigations indicate a high potential for NPS impacts.

         Upon further examination of the data from the Texas Water Quality
         Inventory and 303d List, it becomes readily apparent that constituent
         values exceeding the MCL occur predominantly in the "outcrop" portions
         of any aquifer with "outcrop" (unconfined) and "downdip" (confined)
         areas, or in the completely unconfined aquifers like the Ogallala,
         Seymour, and Cenezoic Pecos Alluvium. These "outcrop" areas of
         aquifers are more vulnerable to NPS impacts.

         A spatial context reveals that a disproportionate number of high nitrate
         values occur in the Rio Grande Valley area of the aquifer. Therefore, this
         portion of the Gulf Coast aquifer must be labeled as impacted by NPS
         pollution.

          Sampling sites exceeding an MCL for a given constituent will also be
         targeted. These would include the Lipan, Seymour, Marathon, Bone
         Spring-Victorio Peak, Edwards-Trinity (High Plains), Blaine, Ogallala,
         and Cenezoic Pecos Alluvium aquifers.

         Future water quality inventories will contain more specific groundwater
         quality assessments for aquifers. This will allow the focus to be more
         narrow in determination of potential NPS impacts. The values for nitrate
         and other constituents in all reports may be revisited in the case of a
         change in the MCL values, as occurred with the 2003 EPA arsenic
         evaluation.

Monitoring the Results
         The Texas Groundwater Protection Committee (TGPC), through the Texas
         Groundwater Protection Strategy, has commissioned the development of a
         new statewide groundwater monitoring program that will better evaluate
         the effectiveness of regulatory programs in preventing impacts from both
         point sources and nonpoint sources. Future activities of the TPGC, and of
         its member agencies, may be guided by the results of the new monitoring
         program.




84                                             TCEQ/TSSWCB joint publication SFR-68/04
CHAPTER 6 IMPLEMENTATION
               Nonpoint source pollution management makes use of both regulatory and
               non-regulatory programs. Regulatory programs establish rules for certain
               activities in order to prevent harm to the environment resulting from these
               activities. The rules often require notification and reporting to a regulatory
               authority when the activity is engaged in, and specific prior authorization
               for the activity, such as registration, permitting, or certification.
               Regulatory activities also include inspections to determine whether rules
               are being complied with, as well as pursuit of apparent violations through
               investigations, enforcement activities, and litigation.

               Non-regulatory programs do not establish or enforce environmental
               protection rules. Non-regulatory programs are voluntary. Regulation of
               everyday practices which individuals can use to control some nonpoint
               sources of pollution is impractical. In these cases, Texas encourages
               voluntary compliance through education and outreach. In addition, the
               size and complexity of the problem, low public awareness, and the lack of
               rigorous scientific definition of NPS problems make regulation difficult.
               Without regulation, a coordinated effort from the highest levels of
               government down to the citizens must occur to have an impact and reduce
               nonpoint source pollution.

               The Texas Commission on Environmental Quality ( TCEQ) is designated
               by law as the lead state agency for water quality in Texas. The Texas State
               Soil and Water Conservation Board (TSSWCB) also plays an important
               role as the lead agency in the state for the management of agricultural and
               silvicultural (forestry) nonpoint source runoff. Local, regional, state, and
               federal agencies have specific responsibilities that are critical to the
               restoration and protection of polluted water bodies. Non-government
               organizations, especially at the watershed level, provide information about
               local concerns and infrastructure, and help build support for the kind of
               pollution controls necessary to restore water quality.

               This chapter describes ongoing programs throughout the state which
               address NPS pollution. The programs are conducted by the agencies
               described in Chapter 4. This chapter is divided into the following types of
               NPS management issues:

               #     Surface Water Plans
               #     Groundwater Plans
               #     Remediation of Contaminated Sites
               #     Emergency Response and Disaster Recovery
               #     Hydromodification
               #     Marinas and Recreational Boating
               #     Solid and Hazardous Waste Management


TCEQ/TSSWCB joint publication SFR-68/04                                                   85
       #    Wastewater Management
       #    Storm Water Management
       #    Pesticide Management
       #    Agricultural Management
       #    Silvicultural Management
       #    Pollution Prevention
       #    Protection for Drinking Water Sources
       #    Aquifer Protection
       #    Wetlands Protection
       #    Coastal Programs
       #    Border Programs


Surface Water Plans
       An important tool in managing nonpoint source pollution is the
       development of implementation plans. Once the sources or causes of
       pollution have been identified through the development of TMDLs or
       special studies (described in Chapter 5), an implementation plan must be
       developed. Implementation plans describe the management measures
       necessary to achieve the pollutant reductions. Management measures
       incorporate both nonregulatory and regulatory mechanisms. These
       management measures may include permit effluent limits and
       recommendations, nonpoint source pollution management practices,
       stream standard revisions, special projects, pollution prevention, public
       education, and watershed-specific rule recommendations.

       Implementation plans may include both control actions and management
       measures. Control actions are point source pollution reduction strategies
       like the construction of centralized wastewater treatment facilities.
       Management measures are nonpoint source pollution reduction strategies
       which are the focus of this document. The best management measures for
       each individual watershed are developed in cooperation with regional and
       local stakeholders.

       There are two types of plans developed in the State of Texas, TMDL
       Implementation Plans and plans developed at the local level called
       Watershed Protection Plans.

       Both types of implementation plans describe implementation activities, the
       schedule for implementing them, and the authority for the regulatory
       measures. It also provides reasonable assurance that the voluntary
       practices will be undertaken and identifies partners who may perform
       these tasks. For instance, the plan may identify funds needed to implement
       voluntary actions. The plan also includes the measurable results that will
       be achieved, along with a follow-up monitoring plan to determine its



86                                           TCEQ/TSSWCB joint publication SFR-68/04
               success. Interim results are evaluated to assess progress toward the goal of
               the plan.

               Even after plans are fully implemented, it is difficult to accurately predict
               how long it will take for improvements to occur in the water body, or how
               much improvement will be seen. For this reason, there is a schedule for
               phasing in implementation activities, especially those that address
               nonpoint sources of pollution. Less expensive, time-tested activities are
               implemented first, and their affects are assessed. If the water quality goal
               of the plan is not yet achieved, then another round of activities is
               implemented. Through this adaptive management approach, the water
               body is continually reassessed, and adjustments are made in the
               implementation activities as needed to attain the water quality goal of the
               plan.

               The following elements will be addressed in plans implemented through
               the CWA §319(h) Grant Program as required by EPA Guidance:

               #     a. An identification of the causes and sources or groups of
                     similar sources that will need to be controlled to achieve the
                     load reductions estimated in the TMDL.
               #     b. An estimate of the load reductions expected for the
                     management measures described in the implementation plan.
               #     c. A description of the NPS management measures that will
                     need to be implemented to achieve the load reductions
                     estimated in the implementation plan, and an identification of
                     the critical areas in which those measures will be needed to
                     implement the plan.
               #     d. An estimate of the amounts of technical and financial
                     assistance needed, associated costs, and/or the sources and
                     authorities that will be relied upon, to implement the plan.
               #     e. An information/education component that will be used to
                     enhance public understanding of the project and encourage
                     early and continued participation in selecting, designing, and
                     implementing the NPS management measures that will be
                     implemented.
               #     f. A schedule for implementing the NPS management
                     measures identified in the plan.
               #     g. A description of interim, measurable milestones for
                     determining whether NPS management measures or other
                     control actions are being implemented.
               #     h. A set of criteria that can be used to determine whether
                     loading reductions are being achieved over time and
                     substantial progress is being made towards attaining water
                     quality standards and, if not, the criteria for determining
                     whether the TMDL needs to be revised.


TCEQ/TSSWCB joint publication SFR-68/04                                                  87
         #    i. A monitoring component to evaluate the effectiveness of
              the implementation efforts over time, measured against the
              criteria established in the plan.

TMDL Implementation Plans
         Chapter 5 explains how Total Maximum Daily Loads (TMDLs) serve as
         part of the assessment process to identify sources and quantities of
         pollutant loadings that are preventing a water body from meeting water
         quality standards. After a TMDL is completed, an implementation plan is
         developed that describes the management measures necessary to achieve
         the pollutant reductions identified in the TMDL. The ultimate goal of
         TMDL Implementation Plans is the attainment of the water quality
         standard, but additional, interim results may be evaluated to assess
         progress toward that goal as described above. The development of TMDL
         Implementation Plans and implementation of NPS management measures
         defined in these plans is a priority for CWA §319(h) funding (described in
         Chapter 2).

Watershed Protection Plans
         Watershed Protection Plans, are also developed at the local level to
         address water quality issues. Watershed Protection Plans are often based
         on special studies conducted to gather more data in certain areas where
         problems are known to exist but more intense monitoring is necessary to
         determine the source of the problem.

         Watershed Protection Plans are developed by river authorities, cities, or
         other local government entities to determine how to best solve the water
         quality problems of that area and to define the implementation activities
         needed to attain or maintain water quality standards. Priority for CWA
         §319(h) funding (described in Chapter 2) is provided to develop and
         implement these plans.

Water Quality Trading
         The concept of water quality trading has often been discussed as a way to
         increase the efficiency of TMDL and Watershed Protection Plan
         implementation and/or provide more flexibility for sources required to
         achieve extreme load reductions. In the context of TMDL and Watershed
         Protection Plan implementation, “water quality trading” refers to
         theoretical trading of pollutant allocations among local or regional
         sources, and generally does not mean physical transfers of actual effluent
         discharge. Arranging pollutant trades amongst watershed sources typically
         would require that some entity tracks the trades and keeps the account
         balanced to remain within the planned load allocations. The accounting
         entity may also need to mediate legal agreements, or disagreements,
         between trading partners.



88                                             TCEQ/TSSWCB joint publication SFR-68/04
               Action with regard to water quality trading studies or plans will depend
               largely on the initiative of others, and the TCEQ and TSSWCB cannot
               stipulate when or if such efforts will occur. However, the TCEQ and
               TSSWCB will attempt to cooperate with such efforts in a timely and
               helpful manner. The development of a water quality trading program is
               optional. Any such effort that uses CWA §319 grant funding will have the
               tracking/accounting assurance stipulated in the grant stipulations.

Groundwater Plans
               The Texas Groundwater Protection Committee strives to improve or
               identify areas where new or existing programs could be enhanced to
               provide additional protection for groundwater resources. The committee
               actively seeks to improve existing groundwater programs and promotes
               coordination among agencies and Groundwater Conservation Districts.

Joint Groundwater Monitoring and Contamination Report
               The TGPC uses many tools to verify pollutant and contamination sources
               and develop plans to address the sources. The Joint Groundwater
               Monitoring and Contamination Report is essential to this process. The
               report is a compilation of all known groundwater contamination cases in
               the state and their enforcement status. In general, once groundwater
               contamination has been confirmed through regulatory compliance
               monitoring, the case will follow a generic sequence of actions until the
               investigation concludes no further action is necessary. The sequence of
               actions to verify pollutant sources and develop plans based on this report
               generally consists of confirmation of the contamination, an investigation
               to study the extent, composition, and circumstances of the contamination,
               and the planning of corrective action measures based on the investigation.

Groundwater Protection Strategy
               There are no specific programs that routinely examine the quality of water
               being consumed by Texans utilizing private/domestic wells, the segment
               of Texas' population most likely to be impacted by NPS pollution of
               groundwater. Surveys of the groundwater quality of private wells in Texas
               are rare; however, studies that have been conducted by various agencies
               have indicated that both man-made and naturally occurring contaminants -
               (eg fecal coliform, nitrate, radioactive nuclides, pesticides and pesticide
               degradation byproducts, arsenic, and other heavy metals) have been found
               in some domestic wells at levels that exceed health-based maximum
               contaminant levels (based upon a lifetime exposure to the constituent).
               The TGPC has prepared the new Texas Groundwater Protection Strategy
               (AS-188, February 2003) that details actions to be taken to remedy this
               situation and address other aspects of NPS pollution.




TCEQ/TSSWCB joint publication SFR-68/04                                                89
         The state's groundwater protection efforts are implemented through three
         types of groundwater program activities: groundwater protection,
         groundwater remediation, and groundwater conservation.

         Protection. Groundwater protection is the first programmatic component
         that defines the state's efforts. TWC§26.401 sets out nondegradation of the
         state's groundwater resources as the goal for all state programs and asserts
         that groundwater be kept reasonably free of contaminants that interfere
         with the present and potential uses of groundwater.

         Remediation. The second programmatic component of the state's efforts is
         groundwater remediation. Once contamination has occurred, the goal of
         remediation programs is to restore the quality of groundwater if feasible.
         The remediation of groundwater contamination is accomplished through
         the implementation of corrective action plans developed as a result of the
         Joint Groundwater Contamination Report, monitoring of the effectiveness
         of corrective action measures, and ultimately, the completion of the
         corrective action measures.

         Conservation. Another component of groundwater programs is
         conservation. Groundwater Conservation Districts are the state's preferred
         method of managing groundwater resources. Groundwater Conservation
         Districts have the authority to adopt and enforce rules, require well
         permits, monitor groundwater quality and quantity, and provide public
         education. These activities are useful in assisting with the implementation
         of the Districts' management plans described above.

Groundwater Conservation Districts
         The legislature has stressed the importance and responsibility of
         groundwater conservation districts in developing and implementing
         comprehensive management plans to conserve and protect groundwater
         resources. Wastewater reuse, desalination, well spacing regulations, brush
         control, and other strategies are featured in the plans.

         This chapter, and the following two chapters, represents the toolbox of
         programs in place throughout the state which attempt to achieve the goals
         defined in this management plan through implementation of the defined
         milestones. The implementation programs and measures described in the
         plan work together to manage nonpoint source pollution in the State of
         Texas and are often defined through planning to achieve specific water
         quality goals.

Remediation of Contaminated Sites
         Environmental contamination can occur in many ways. Some examples
         include, unreported spills of hazardous materials, undetected leaks from
         pipes or other malfunctioning industrial equipment, improper disposal of
         byproducts of industrial processes, abandoned municipal solid waste

90                                             TCEQ/TSSWCB joint publication SFR-68/04
               landfills, and abandoned, inactive industrial sites. If not remedied, ground
               and surface water contamination may occur which can pose environmental
               and human health problems. Below is a discussion of several state
               programs in place which address remediation of contaminated sites.

Superfund Program
               The state Superfund program's mission is to remediate abandoned or
               inactive sites within the state that pose an unacceptable risk to public
               health and safety or the environment, but which do not qualify for action
               under the federal Superfund program. The state Superfund program is
               administered by the TCEQ.

               The TCEQ manages or provides management assistance to the U.S.
               Environmental Protection Agency (EPA) with regard to the Superfund
               remediation process, after the site is identified as being eligible for listing
               on either the state Superfund registry or the federal National Priorities
               List. The TCEQ ensures that all Superfund activities are completed in a
               timely and efficient manner, and in accordance with all applicable state
               and federal laws and rules.

Brownfields Program
               In Texas, many former industrial properties lie dormant or underutilized
               due to liability associated with real or perceived contamination. These
               properties are broadly referred to as brownfields. The TCEQ, in close
               partnership with the EPA and other federal, state, and local agencies,
               facilitates cleanup, transferability, and revitalization of brownfields. This
               is accomplished through the development of regulatory, tax, and technical
               assistance tools. In addition, the TCEQ is available at no cost to local
               governments to provide technical advice, education, and project partnering
               for brownfields redevelopment projects.

Voluntary Cleanup Programs
               The Texas Voluntary Cleanup Program (VCP) provides administrative,
               technical, and legal incentives to encourage the cleanup of contaminated
               sites in Texas. Non-responsible parties, including future lenders and
               landowners, receive protection from liability to the state of Texas for
               cleanup of sites under the VCP. Therefore, constraints for completing real
               estate transactions at those sites are eliminated. Also under the VCP, site
               cleanups follow a streamlined approach to reduce future human and
               environmental risk to safe levels. As a result, many unused or under used
               properties may be restored and become economically productive and
               beneficial to the community.

               In addition, the RRC has a Voluntary Cleanup Program, which oversees
               the remediation of oil and gas related pollution and provides an incentive
               to remediate the pollution through a release of liability to the state in


TCEQ/TSSWCB joint publication SFR-68/04                                                     91
         exchange for a successful cleanup. Applicants to the program may not
         have caused or contributed to the pollution.

Corrective Action Program
         The mission of the industrial and hazardous waste corrective action
         program is to oversee the cleanup of sites with soil and groundwater
         contamination from industrial and municipal hazardous and industrial
         non-hazardous wastes. This program is administered by the TCEQ. The
         goal of this program is to assure that the public is not exposed to
         hazardous levels of chemicals by requiring mitigation, and the removal of
         contamination to levels protective of human health and the environment.

         The RRC is responsible for plugging and cleanup of abandoned wells and
         sites. The RRC oversees cleanup by responsible parties of pollution
         associated with oil and gas activities under RRC jurisdiction. Funding for
         the RRC’s program comes from regulatory fees, permit fees, and bond
         fees paid by the oil and gas industry. Cleanup and prioritization of sites is
         based on protection of public health, public safety, and the environment.

Leaking Petroleum Storage Tank Program
         The TCEQ is responsible for administering the leaking petroleum storage
         tank (LPST) program. The program mission is to oversee the cleanup of
         spills from regulated storage tanks by recording and evaluating all
         reported incidents of releases of petroleum and other hazardous substances
         from underground and above-ground storage tanks. The program goal is to
         assure that the public is not exposed to hazardous levels of contamination
         by requiring the removal of contamination from LPSTs to levels
         protective of human health and the environment.

         Any entity performing or coordinating regulated LPST corrective action
         services must be licensed by the TCEQ, as an LPST corrective action
         specialist. Any individual who supervises any corrective action required
         on a LPST site but is not a qualified professional engineer must be
         registered as an LPST corrective action project manager. Corrective action
         services include measures to determine and report the extent of a release
         in progress, attempts to halt and prevent future releases of regulated
         substances, cleanup of surface and subsurface contamination on site, site
         closures, post-remediation monitoring, or any other actions reasonably
         necessary to protect public health and preserve environmental safety.

Emergency Response and Disaster Recovery
         Nonpoint source pollution can occur as a result of natural disasters or
         spills of hazardous materials. Emergency response to these incidents can
         reduce the amount of impact pollutants from these activities present to the
         environment.



92                                              TCEQ/TSSWCB joint publication SFR-68/04
               Severe storms can cause loss of vegetation, severe erosion, and runoff of
               contaminants, all of which can impact water quality. Clean-up efforts
               following severe storms often create large quantities of waste materials,
               which place additional pressures on the environment.

               Spills on land are considered an emergency, because chemicals or other
               hazardous materials can enter nearby water resources and pose a threat to
               the environment and public health. Transportation and storage of
               hazardous materials increases the risk of the occurrence of spills. Some of
               the programs in the state of Texas that are responsible for response to
               spills and recovery from natural and manmade disasters are discussed
               below.

Floodplain Management
               Development in some Texas communities has raised the elevation of
               portions of the floodplain, increased drainage over impervious surfaces,
               channeled runoff away from new growth areas, and caused other physical
               changes to the environment. These changes can contribute to the severity
               of flooding events, and result in further damage to the environment.

               The TCEQ serves as the state floodplain coordinator and implements the
               National Flood Insurance Program (NFIP) in Texas. As part of this
               program, the TCEQ provides guidance, support, and training to floodplain
               administrators to become participants in the NFIP. TCEQ staff visit
               communities throughout the state to provide planning, assistance, and
               information to community officials, and help coordinate disaster response
               to severe floods.

               The Texas Water Code authorizes cities and counties in the state to adopt
               ordinances and court orders to create comprehensive floodplain
               management programs designed to protect public health, safety, and the
               general welfare of its citizens. To participate in the NFIP, a community
               must adopt and enforce a floodplain management ordinance which
               prevents new development from increasing the flood threat and protect
               new and existing buildings from anticipated flood events.

               Local floodplain management programs are responsible for reviewing all
               construction plans and conducting inspections of approved projects to
               assure conformance with NFIP regulations. NFIP regulations ensure that
               construction methods and materials will minimize future flood damage
               and impacts to the environment from floods. Best management practices
               are required in floodplain areas to provide for water conveyance, and
               reduce runoff volumes associated with development. Examples of a few
               BMPs used include swales, detention and retention ponds, and infiltration
               basins.




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Emergency Response Program
        The TCEQ Emergency Response team is on call 24-hours a day,
        year-round for response to oil and hazardous substance spills,
        emergencies, and human-caused disasters. The TCEQ responds to
        incidents such as, midnight dumping of abandoned drums, the breakup of
        the space shuttle Columbia in the skies over central and east Texas, and
        natural disasters.

        The TCEQ collaborates with the EPA, the Coast Guard, other state
        agencies, counties, cities, local hazardous material teams, fire
        departments, law enforcement, and corporate response units. TCEQ staff
        lead response efforts when appropriate and provide planning or support.

        The TCEQ assesses health and environmental risks in conjunction with
        the Texas Department of State Health Services (DSHS), the Railroad
        Commission of Texas (RRC), the Texas Parks and Wildlife Department
        (TPWD), Texas General Land Office (GLO) or other experts as necessary.
        DSHS identifies communities where people may be exposed to hazardous
        substances in the environment, assess a site's hazards, and recommends
        actions that need to be taken to protect human health. The RRC is
        responsible for response and clean-up of inland oil and gas related spills.
        TPWD is responsible for assessing impacts of spills to fish and wildlife.
        GLO responds to coastal oil spills.

        Some of the services the TCEQ offers in response to spills and other
        pollution related emergencies include:

        #    assisting water supply officials providing drinking water and
             making systems operational; evaluating water quality;
             assisting individuals in maintaining private water or sewer
             systems; and assessing damages to public drinking water
             systems;
        #    providing information and aid to the State Emergency
             Management Council on matters of flood-hazard areas,
             floodplain management, flood hydrology, engineering, dam
             safety, reservoir operation, water rights and uses, water
             quality, and hazardous waste management;
        #    making available the services of specialists (floodplain
             management, hydrology, meteorology, groundwater geology,
             water quality, dam safety, wastewater treatment, water rights
             and uses, solid waste management including hazardous waste
             and radioactive waste, and emergency response) that may be
             of assistance during a disaster;
        #    providing spill response maps, as well as maps relating to
             flood-hazard areas;




94                                            TCEQ/TSSWCB joint publication SFR-68/04
               #     providing TCEQ data, including data from neighboring states
                     and Mexico, needed for dealing with a disaster that
                     transcends the boundaries of Texas;
               #     providing support for post-emergency weather and damage
                     assessment;
               #     providing technical assistance to local governments in the
                     physical siting of disposal facilities for debris including
                     municipal wastes whenever a disaster generates excessive
                     amounts of waste;
               #     providing cleanup funding as appropriate from funds under
                     the TCEQ's statutory authorities; and
               #     providing contracting resources for cleanups.

               To the extent possible, TCEQ ensures that the individuals or entities
               responsible for spills bear the cost of clean-up activities. Violators who
               intentionally or knowingly allow an unauthorized discharge of pollutants
               that causes or threatens to cause water pollution may be prosecuted.
               Failure to report a spill is also cause for prosecution.

Coastal Oil Spill Prevention and Response
               The Oil Spill Prevention and Response Act of 1991 (OSPRA) designated
               the GLO as the lead state agency for preventing and responding to oil
               spills in the marine environment. A two-cent-per-barrel fee on crude oil
               loaded or off-loaded in Texas supports funding for the GLO's response
               efforts. To ensure rapid response, field offices are located along the Texas
               coast. In preparation for spills, the program has pre-staged response
               equipment in sensitive and geographically advantageous locations. The
               GLO's Oil Spill Prevention and Response (OSPR) program functions
               include deploying state-owned response equipment, designating
               responsible parties, coordinating spill response strategies, investigating the
               spill causes, and conducting follow-ups to ensure that appropriate
               corrective actions are identified and implemented. The program maintains
               a substantial inventory of response equipment.

               The OSPR program maintains an active outreach effort, visiting schools,
               associations, and interest groups. The outreach program emphasizes the
               environmental impacts of small, chronic spills. Pollution prevention
               methods are highlighted in every presentation. In addition, the OSPR
               sponsors the Clean Gulf Conference and Exhibition annually to bring
               experts from government and industry together to discuss the latest
               developments in oil spill technology and the issues facing both responders
               and industry.

               The OSPR program has also completed construction of four bilge water
               reception facilities along the coast. The Oily Bilge Water Reception
               Facility Program deters disposal of bilge water containing oil directly into
               surface water by providing operators of pleasure and commercial boats

TCEQ/TSSWCB joint publication SFR-68/04                                                  95
          with disposal facilities. In addition, the GLO has increased its presence
          with additional boat and harbor patrols. The OSPR program maintains a
          comprehensive, unannounced oil spill drill and audit program designed to
          measure the readiness level of all sectors of the oil handling community:
          deep draft vessels, pipelines, and shore-based facilities.
          The OSPR program is one of only a few state programs in the nation that
          funds oil spill prevention and response-related research. The Shoreline
          Environment Research Facility (SERF) enables oil spill researchers to
          conduct biological and chemical experiments in nine tanks that are
          capable of simulating a variety of coastal environments. The American
          Petroleum Institute has conducted two of the first "field conditions"
          dispersant experiments at the SERF facility, and works with program
          personnel to perfect response strategies for maritime applications.

          The Texas Automated Buoy System (TABS) was developed to assist in
          predicting the movement of oil in offshore environments. Nine offshore
          buoys transmit real time ocean current data, which is then fed into
          computer trajectory models to produce a predicted pattern of oil
          movement.

          To increase spill preparedness and streamline the OSPR program, the
          On-Line Vessel database was created to enable vessel operators to register
          response and preparedness information electronically, rather than submit
          hard copy plans.

          The Texas Oil Spill Planning and Response Toolkit , produced by the
          OSPR program, with assistance from the Coast Guard, is the most
          comprehensive oil spill preparedness tool available. The toolkits are
          comprised of sensitivity maps, local knowledge guides, forms, and Area
          Contingency Plans for all of Texas. The program publishes the toolkit as
          both a downloadable program and CDRom. The toolkit is updated
          annually and is widely distributed free of charge throughout the Gulf
          Coast.

Kills and Spills Team
          The Texas Parks and Wildlife Department (TPWD) has assembled a Kills
          and Spills Team (KAST) comprised of biologists and team members
          headquartered in and assigned to five regions across Texas. The KAST
          assumes four key responsibilities: 1) respond to fish and wildlife kills and
          pollution incidents, including oil and hazardous material spills;
          2) minimize environmental degradation resulting from pollution incidents
          and fish and wildlife kills; 3) obtain compensation, repair, and restoration
          for environmental damage; and, 4) act as a technical resource with respect
          to relationships between water quality, habitat, and living organisms.

          The majority of incidents the KAST team responds to are fish kills.
          Natural causes responsible for fish kills include extreme weather
          temperatures, bacteria and disease, and toxic algal blooms. The actions of

96                                              TCEQ/TSSWCB joint publication SFR-68/04
               humans can result in fish and wildlife kills through the introduction of
               toxic chemicals, pesticides, fertilizers, and contaminated storm water
               runoff. Low dissolved oxygen concentration is another cause of fish kills.
               Low dissolved oxygen concentrations may be natural or ma-induced. Low
               dissolved oxygen can result from large amounts of plant life depleting
               oxygen levels during the night. Other causes of low dissolved oxygen
               include hot, still days, dams, and dead end canals. A fish or wildlife kill is
               physical evidence that something is wrong. The sooner it is reported, the
               sooner it can be investigated and remedied.

               A fish or wildlife kill is physical evidence that something is wrong. The
               sooner it is reported, the sooner it can be investigated and remedied.
               Immediately after a kill or spill is reported, an investigation begins to
               determine the source of a spill or the cause(s) of a kill. Though differences
               exist between investigating fish and wildlife kills and spills, the need for
               prompt response and accurate analysis applies in either case. Crucial
               details can be lost in a short amount of time. In addition, factors that may
               seem insignificant such as weather, vegetation, algal blooms, water
               chemistry, water flow, and pollution, can have serious impacts to an
               ecosystem when they change rapidly. Therefore, TPWD biologists must
               pay close attention to details, follow proper sampling procedures, and
               keep valid records. For large pollution events, TPWD biologists often
               work together with other state and local authorities.

               Often in the case of a kill or spill, a responsible party is identified as
               having caused the incident. The responsible party may be asked to make
               restitution for the ecological damages. Restitution may consist of a
               monetary payment for the value of fish or wildlife killed, or may be some
               project that restores value to the ecosystem.

Hydromodification
               Hydromodification is defined by EPA as the alteration of the hydrologic
               characteristics of surface waters. Hydromodification may cause
               degradation of water resources. Three general types of hydromodification
               contribute to nonpoint source pollution:

               Channel modification. Channel modification describes river and stream
               channel engineering undertaken for the purpose of flood control,
               navigation, drainage improvement, and reduction of channel migration
               potential. Activities such as straightening, widening, deepening, or
               relocating existing stream channels fall into this category. This term also
               refers to the excavation of borrow pits, canals, underwater mining, or
               other practices that change the depth, width, or location of waterways or
               bay formations in coastal areas. Channelization and channel modification
               activities can diminish suitability of instream and streamside habitat for
               fish and wildlife. They can also result in reduced flushing, lowered
               dissolved oxygen levels, saltwater intrusion, loss of streamside vegetation,
               accelerated discharge of pollutants, and changed physical and chemical

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          characteristics of bottom sediments in surface waters. In addition,
          hardening of banks along waterways can increase the movement of NPS
          pollutants from the upper reaches of watersheds into downstream or
          coastal waters.

          Dams. Dams are defined as constructed impoundments that are either (1)
          25 feet or more in height and greater than 15 acre-feet in capacity, or (2) 6
          feet or more in height and greater than 50 acre-feet in capacity. Dams can
          adversely impact the quality of the surface waters and habitat in the stream
          or river where they are located. A variety of impacts can result from the
          siting, construction, and operation of these facilities. Construction
          activities from dams can cause increased turbidity and sedimentation in
          the waterway resulting from vegetation removal, soil disturbance, and soil
          rutting. The operation of dams can also generate a variety of types of
          nonpoint source pollution in surface waters. Controlled releases can
          change the timing and quantity of freshwater inputs into coastal waters,
          reduce downstream flushing, and create sediment deposition downstream
          of the dam. Dam releases can result in erosion of the streambed and
          scouring of the channel below the dam. Finally, reservoir releases can
          alter water temperature and lower dissolved oxygen levels in downstream
          waterbodies.

          Streambank erosion. Streambank erosion refers to the loss of land along
          streams and rivers. The force of water flowing in a river or stream causes
          erosion. Eroded material can be carried downstream and deposited in the
          channel bottom or in point bars located along bends in the waterway.
          These deposits can have adverse impacts on the creation and maintenance
          of riparian habitat. Excessively high sediment loads can smother
          submerged aquatic vegetation, cover shellfish beds and tidal flats, fill in
          riffle pools, and contribute to increased levels of turbidity and nutrients.

          The State of Texas achieves protection of water resources from
          hydromodification activities through a mixture of management measures.
          Below are examples of some of the programs that implement these
          measures.

Clean Water Act §401/404 Water Quality Certification
          CWA§401 provides for the protection of the state's surface water
          resources by ensuring that federal discharge permits are consistent with
          the Texas Surface Water Quality Standards. Under CWA§401, states are
          given the authority to review federally permitted or licensed activities that
          may result in a discharge of pollutants to waters of the U.S., such as the
          discharge of dredge or fill material. CWA§401 is a cooperative
          federal/state program that gives states authority to review federal activities
          in or affecting state waters and reflects the state's role at the forefront in
          administering water quality programs.



98                                               TCEQ/TSSWCB joint publication SFR-68/04
               Only those activities that require a federal permit are subject to state
               review for §401 certification. However, any federally authorized activity
               which may result in a discharge is subject to CWA§401 certification. An
               important type of permit subject to CWA§401 certification is the U.S.
               Army Corps of Engineers (Corps) CWA§404 permit for discharges into
               wetlands or other navigable waters.

               Before issuing a federal permit in Texas, the permitting agency must
               receive, from TCEQ or RRC, certification , conditional certification, or
               waiver stating that the discharge will not violate the Texas Surface Water
               Quality Standards. If the state denies certification, the federal permit is
               also denied. The TCEQ is responsible for certifying most federal permits,
               except for federal permits related to oil and gas production, which are
               certified by the Railroad Commission of Texas (RRC). The RRC certified
               permit activities include dredging an access channel to conduct drilling or
               production operations in a critical area; construction of a drilling pad or
               installation of a production platform in a critical area; or construction,
               operation, or maintenance of a crude oil or natural gas pipeline facility in
               waters of the state. The Texas Parks and Wildlife Department participates
               in the review of CWA§404 permits and CWA§401 wetland certifications
               to determine effects on fish and wildlife, and wetland habitats.

               The CWA§401 certification program also plays an important role
               protecting coastal resources under the Texas Coastal Management
               Program (CMP). The CMP is designed to accomplish the goals set by the
               state legislature for coastal resource protection and to meet specific
               requirements for an approved plan under the federal Coastal Zone
               Management Act (CZMA). Certain activities, such as discharges
               authorized by CWA§404 permits, must be consistent with the state CMP
               when they occur within the coastal zone boundary. CWA§404 permits
               often involve impacts to coastal wetlands. Efforts to avoid and/or
               minimize adverse impacts to wetlands are taken to retain the important
               functions these water bodies provide for wildlife and aquatic habitat.

Water Rights Permit Review
               Water flowing in Texas' creeks, rivers, and bays is public property;
               however, the State of Texas confers on individuals and organizations the
               right to pump water from a stream, creek, pond, or lake or to impound
               water in a lake or pond, under the authority of Chapter 11 of the Texas
               Water Code. With a few exceptions, surface waters may be used only with
               explicit permission of the state, granted in the form of water rights. Water
               rights projects have the potential to cause, amplify, or exacerbate nonpoint
               source problems through flow modification, dam construction, sediment
               load alteration, loss of wetlands, and removal of riparian vegetation.

               Each application for a water rights permit is reviewed for administrative
               and technical requirements by the TCEQ to evaluate its impact on other
               water rights, bays and estuaries, conservation, water availability, public

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          welfare, etc. TCEQ assesses the effects that the issuance of a water rights
          permit will have on existing instream uses including, water quality, fish
          and wildlife habitat, recreation, and freshwater inflows to bays and
          estuaries. In addition, Texas Parks and Wildlife Department reviews water
          rights applications, and is required by law to provide recommendations for
          permit conditions, mitigation, and schedules of flow or releases to protect
          fish and wildlife resources (Parks and Wildlife Code 12.024).

          Factors that the TCEQ evaluates when performing an assessment of a
          water rights permit include the perennial nature of the stream, aquatic life
          use and biological integrity of the stream, water quality issues, presence of
          species of concern, and recreational uses. In addition to setting streamflow
          restrictions, mitigation may be recommended for altered, inundated, or
          destroyed terrestrial or riparian wetland habitats. The results of these
          assessments are incorporated into limitations and/or special conditions
          attached to water rights permits in order to protect the environmental
          integrity of the impacted stream reach.

Marinas and Recreational Boating
          Marinas and boating activities can be sources of nonpoint source
          pollution. Texas has over 350 coastal and inland marinas statewide
          encompassing slips and storage for more than 57,000 boats. Marinas, if
          not sited and constructed properly, can destroy wetlands, aquatic habitat
          and submerged aquatic vegetation, and can also restrict or alter water
          flows. Improper siting and construction can also lead to decreased
          dissolved oxygen levels and increases in pollutant concentrations.
          Activities that occur at marinas can create sources of nonpoint pollution
          including petroleum hydrocarbons such as fuel and oil. These substances
          can enter surface water directly from spills during refueling, may be
          present in bilge discharge, or can be transported in storm water runoff
          from these facilities. Other potential pollutants include copper and tin
          which are used in antifoulants used to prevent fouling of the submerged
          portions of ships, and iron and chrome which are contained in boats
          themselves. These substances may enter the water during boat cleaning.

          Recreational boating can also degrade water quality and destroy aquatic
          habitat. Sewage, waste from fish cleaning, and food waste discharged
          from boats, either accidental or intentional, can lower dissolved oxygen
          levels, increase nutrients and impact aquatic life. In addition, discharges of
          sewage can elevate fecal coliform bacteria to levels that are unsafe for
          swimming and fishing. Some of the programs in place to address the
          nonpoint source problems resulting from marinas and recreational boating
          activities are discussed below.

The Clean Marina Initiative
          The Clean Marina Initiative is a voluntary, incentive-based program
          promoted by the National Oceanic and Atmospheric Administration

100                                              TCEQ/TSSWCB joint publication SFR-68/04
               (NOAA) and others that encourages marina operators and recreational
               boaters to protect coastal water quality by engaging in environmentally
               sound operating and maintenance procedures. NOAA is jointly
               responsible for administering the Coastal Nonpoint Control Program with
               EPA, and plays an important role in protecting coastal waters from
               polluted runoff. The Coastal Nonpoint Program establishes a consistent set
               of management measures for all coastal states to use in controlling
               nonpoint source pollution. Management measures are designed to prevent
               or reduce runoff from a variety of sources, including marinas.

               NOAA recognizes that the Clean Marina Initiative can serve a valuable
               role in protecting coastal waters from nonpoint source pollution and has
               promoted the program as a way for states to meet many of the marina
               management measure requirements under the Coastal Nonpoint Program.
               As a result, the Coastal Nonpoint Program has been responsible for
               driving the development of most of the state Clean Marina Programs
               existing today and developing a national interest in the initiative. NOAA
               continues to support the Clean Marina Initiative through targeted grant
               funding to states developing Clean Marina Programs.

The Clean Texas Marinas Program
               The Clean Texas Marinas Program is a proactive partnership designed to
               encourage marinas, boatyards and boaters to use simple, innovative
               solutions to keep Texas coastal and inland water resources clean. The
               basic goal of the program is pollution prevention by increasing awareness
               of environmental laws, rules, and jurisdictions, and increasing the number
               of designated Texas Clean Marinas. To be designated as a Texas Clean
               Marina and be recognized for environmental stewardship, marina owners
               are asked to identify opportunities and implement best management
               practices to control pollution associated with:

               #     Vessel maintenance and repair
               #     Petroleum storage and transfer
               #     Sewage disposal
               #     Solid, liquid and hazardous wastes
               #     Stormwater runoff
               #     Facilities management
               The program also offers information, guidance, and technical assistance to
               marina operators, local governments, and recreational boaters on best
               management practices (BMP's) that can be used to prevent or reduce
               pollution. The Clean Texas Marinas Program was developed by the Texas
               Sea Grant College Program in partnership with the GLO, TCEQ, Marina
               Association of Texas, the Marina Advisory Board, and others.




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Solid and Hazardous Waste Management
         Many county unincorporated areas in the state do not have organized
         waste collection services. Illegal dump sites are generally easily accessible
         to vehicles, somewhat hidden from view, and are perceived to be a
         no-man's land where dumping is permissible without costs. Approximately
         70% of these sites are located in drainage swales or in creeks, resacas, or
         arroyos. Irrigation canals are also subjected to illegal dumping.

         Environmental risks associated with illegal dumping and burning of solid
         waste include: surface and groundwater contamination; impact to wildlife
         and aquatic habitat; impact on endangered or threatened plants, animals,
         and species; and air pollution from open burning, especially in areas of
         concentrated population. Leachate from illegal dumping sites can
         contaminate water supplies, as can ash with concentrated contaminants
         created during illegal burning. Burn sites are often buried, creating
         potential for future water contamination.

         Over one-fifth of the trash going to landfills in Texas is made up of yard
         trimming and vegetative food material. These materials can be used,
         instead of being wasted, as an organic, environmentally-friendly substitute
         for home chemical fertilizers. Practices by homeowners, such as the use of
         mulching lawnmowers and home composting, can reduce the amount of
         yard waste entering landfills. Manure from animal waste and sludge from
         human waste can also be used in this way. Private enterprise can make use
         of these materials to produce compost on the commercial level.

         Another NPS contributor associated with waste management is the
         improper disposal of hazardous waste. Hazardous waste comes from
         industry, manufacturing, and households. Hazardous waste comes in many
         different shapes and forms. Chemical, medical, and furniture processing
         are some examples of processes that produce hazardous waste. Household
         products that contain corrosive, toxic, ignitable, or reactive ingredients
         such as paints, cleaners, oils, batteries, and pesticides are also hazardous
         wastes that contribute to NPS pollution. Oversided containers for
         household products can contribute to NPS due to overuse to get rid of the
         product, storage which can be unsafe, and improper disposal.

         Hazardous and solid wastes, if not disposed of properly, can pollute the
         environment and pose a threat to human health. The State of Texas has
         several programs in place to address hazardous and solid waste
         management.

State Solid Waste Permitting Programs
         With a few exceptions, the TCEQ uses permitting to regulate the storage,
         transport, processing, and disposal of solid waste in Texas to prevent
         nonpoint source releases to the environment. TCEQ rules require that
         solid waste be processed and disposed of only in authorized facilities.

102                                             TCEQ/TSSWCB joint publication SFR-68/04
               The TCEQ randomly audits a portion of waste stream notifications in
               order to ensure proper classification and coding of waste in Texas.
               Hazardous waste is defined as any solid waste listed as hazardous or
               possesses one or more hazardous characteristics as defined in federal
               waste regulations. Industrial waste is waste that results from or is
               incidental to operations of industry, manufacturing, mining, or agriculture.
               Under the definition of a waste, certain materials recycled in certain ways
               are excluded from being considered waste while others are not.

               Facilities that aggregate, process, and return to use source-separated,
               non-putrescible recyclable materials from the municipal solid waste
               stream are exempt from permitting or registration requirements. All other
               recycling facilities must be authorized by the TCEQ.

               The TCEQ certifies Municipal Solid Waste (MSW) technicians. The
               operating permits of most MSW facilities, including landfills, transfer
               stations, processing facilities, and recycling and resource recovery
               facilities, require the presence of a certified MSW technician. The
               responsibilities of an MSW technician include the proper screening,
               handling, transportation, collection, storage, and disposal of municipal
               solid waste.

The Beneficial Use Sludge Permitting Program
               Sewage sludge, also known as biosolids, must be properly processed,
               transported, and used or disposed of in order to prevent adverse
               environmental and public health impacts. Sludge is the material that
               remains after bacteria has digested the human waste from municipal water
               and wastewater treatment plants. Sludge can also originate from septic
               tanks, chemical toilets, grease and grit traps.

               Because of the nutrient and soil-conditioning characteristics of most
               biosolids, local governments are encouraged to consider beneficial land
               application or composting of sludge. An activity to land-apply Class B
               biosolids for a beneficial use must be authorized by the TCEQ. An activity
               to land apply Class A biosolids (e.g. compost) for beneficial use does not
               require authorization by TCEQ. Beneficial use is defined as the land
               application of treated municipal sludge at or below the agronomic needs of
               a cover crop or the use of water treatment sludge as a soil amendment.

               Because some municipal wastewater treatment plants also receive
               industrial wastewater, sewage sludge can contain pesticides and chemicals
               along with human waste. A permit is required for most activities that
               involve the processing, transportation, beneficial use, or disposal of
               sludge. If a sludge is not of domestic origin, it is regulated as either a
               municipal solid waste or an industrial solid waste.



TCEQ/TSSWCB joint publication SFR-68/04                                                   103
The Illegal Disposal Abatement Program
         To successfully address illegal dumping problems, communities must
         develop long-term comprehensive solutions. The TCEQ has developed a
         model approach for use in developing solutions for illegal dumping and
         other municipal solid waste problems. This model approach focuses on
         developing and maintaining a program that includes the following four
         components:

         #    Garbage collection services. Provide residents with
              convenient and affordable ways to dispose of their garbage,
              such as citizen collection stations for rural communities.
         #    Public awareness campaigns. Increase public awareness on
              the health and safety hazards of illegal dumping and
              available legal options for garbage disposal.
         #    Cleanup of existing dumps. Clean up illegal dump sites to
              discourage other dumpers, who are attracted to these existing
              sites, and to improve the community's awareness of the
              problem.
         #    Enforcement. Increase the cost of illegal dumping through
              increased enforcement and more severe punishments for
              offenders.

         The TCEQ has an extensive outreach campaign to address the issue of
         illegal dumping. The TCEQ also provides funding to Councils of
         Government (COGs) through the Regional Solid Waste Grant program.
         Funds for the grant program are generated by state fees on Municipal
         Solid Waste (MSW) disposed of at landfills. The COGs use the funds to
         develop an inventory of closed MSW landfills; conduct regional
         coordination and planning activities; provide technical assistance and
         informational programs pertaining to solid waste management; serve as
         central point of contact for solid waste management outreach, education,
         and training programs; maintain a regional solid waste management plan;
         and administer pass-through grant programs to provide funding for
         regional and local MSW projects.

Texas Environmental Enforcement Task Force
         Intentional damage to the environment is a serious threat to the public's
         health and safety. In many cases, offenders favor rural areas or
         low-income neighborhoods for environmental crimes such as illegal
         dumping. The most common environmental crimes involve the dumping
         of various pollutants like septic waste, household garbage, used motor oil,
         auto batteries and barrels of hazardous waste.

         Texas is a national leader in the investigating and prosecuting of
         environmental crime. This distinction is a direct result of the formation of
         the Texas Environmental Enforcement Task Force. The task force's sole


104                                             TCEQ/TSSWCB joint publication SFR-68/04
               responsibility is to combat environmental crime, both directly and by
               informing and training Texas peace officers.

               Each year TCEQ dedicates a week to educating Texas about
               environmental damage caused by dumping and other illegal pollution.
               Activities during the week include educational forums with community
               groups and law enforcement, a traveling exhibit on preventing
               environmental crime, police officer training, and a ceremony recognizing
               environmental crime fighters. Training sessions for police officers cover
               state and federal environmental statutes and emphasize the differences
               between criminal and civil cases. Primary instruction includes evidence
               collection and the use of scientific and technical expertise. Officers are led
               through re-enactments of illegal discharges and the execution of a search
               warrant.

               The TCEQ heads up the Texas Environmental Enforcement Task Force
               with TPWD, Attorney General's Office, GLO, RRC, and the Governor's
               Office. While operating as a task force, these state agencies coordinate
               with various U.S. Attorney's Offices, the EPA, and the FBI. Task force
               membership has expanded to include a dozen more state, federal, and local
               entities. The task force meets bimonthly to review referrals for
               investigations. Tips come from many sources: employees at the offending
               company, business competitors, or task force members who come across
               leads. If the environmental task force adopts a case, each member agency
               appoints an investigator and the group consults with prosecutors to
               determine whether the case is better suited for state or federal courts. The
               participating agencies collaborate in conducting searches, taking and
               analyzing samples, and performing other functions necessary to support
               criminal investigations and prosecutions.

Citizen Complaints
               Responding to complaints from the general public about alleged
               environmental violations is an important part of TCEQ's regional office
               responsibilities. Each complaint is assigned a priority status to ensure that
               staff respond to the most environmentally serious complaints first. TCEQ
               has established procedures by which staff will investigate complaints once
               the most appropriate course of action is determined. An investigation may
               take the form of an on-site inspection or sampling.


               Complaints are categorized as follows:

               #     conditions relating to air quality such as odor, dust, and smoke
               #     conditions that create a potential to pollute the water or land
               #     alleged violations of TCEQ permits or rules
               #     smoking vehicles
               #     spills

TCEQ/TSSWCB joint publication SFR-68/04                                                 105
         #    other environmental concerns

         Matters not within TCEQ jurisdiction will be referred to the appropriate
         state agency. The TCEQ does not have the authority to regulate, enforce,
         or mediate private actions between citizens.

Citizen Environmental Watch
         The Citizen Environmental Watch Program allows information gathered
         by private individuals to be developed as evidence of environmental
         violations. This program provides an opportunity for citizens to get
         involved with environmental protection.

         The program is implemented by the TCEQ regional offices. Regional staff
         review the complainant's information—such as photos, videotapes, and
         water samples—and decide on the appropriate course of action. If
         necessary, an investigator will visit the site or facility in question.
         Individuals must be willing to disclose their identities and, in some cases,
         asked to testify. Strict agency procedures for gathering and preserving
         evidence must be followed. The TCEQ can pursue an enforcement action
         only if the evidence is admissible at a hearing, based on Texas rules of
         evidence. The agency will not consider information gathered illegally.

         If a serious or unresolved violation is found, the TCEQ will initiate an
         enforcement action. Individuals providing evidence in an enforcement
         case will be notified of the results of the investigation and any follow-up
         enforcement actions.

Composting
         Compost is produced by aerobic decomposition of organic matter.
         Compost feedstock may include, but is not limited to, leaves and yard
         trimmings, biosolids, food scraps, food-processing residuals, manure or
         other agricultural residuals, forest residues, bark, and paper. Composting
         benefits water quality by saving landfill capacity, reducing the use of
         chemical fertilizers, improving manure management which aids in the
         reduction of phosphorus and bacteria concentrations due to storm water
         runoff from dairy farms, and promoting establishing vegetation which
         helps reduce NPS pollution from rainfall runoff.

         The TSSWCB and the TCEQ partnered to initiate an innovative solution
         to water quality problems in the North Bosque and Leon watersheds, the
         Composted Manure Incentive Program (CMIP). Storm water runoff
         containing manure from dairy farms is a significant source of phosphorous
         and bacteria in the two watersheds. Incentive payments, funded by CWA
         §319 funds, are given to governmental entities towards the purchase of
         eligible composted manure to be used in beneficial uses. The ultimate goal
         of the project is to ensure that markets are in place to support the
         continued export of manure from these two watersheds after rebate funds

106                                             TCEQ/TSSWCB joint publication SFR-68/04
               have been exhausted. The Texas Department of Transportation (TxDOT)
               uses the compost throughout the state to promote establishment and
               maintenance of roadside vegetation.

               The TCEQ provides outreach and technical assistance in the use of
               compost throughout the state. The outreach program provides workshops,
               demonstrations, and technical assistance specifically addressing the
               benefits, opportunities, and incentives for using composted manure. The
               TCEQ has an expanded outreach program in the North Bosque and Leon
               watersheds that is conducted in conjunction with the CMIP.

               The Texas Cooperative Extension also has an expanded education and
               marketing campaign for composted manure. This campaign effort has
               surveyed existing and potential markets for composted manure in the
               CMIP watersheds, organized a comprehensive education and marketing
               campaign focused on these markets, and begun field trials and
               demonstrations to document and publicize the effectiveness of the
               appropriate uses of composted manure in a wide array of landscaping,
               horticultural, and agricultural applications.

Used Oil Recycling
               Texas law prohibits dumping used oil on land or into sewers or
               waterways. This includes the use of used oil as a dust suppressant. Texas
               has also banned used oil filters from being placed in or accepted for
               disposal in a landfill. TCEQ requires all transporters, handlers, and
               collection centers for used oil to register with the agency and report annual
               quantities of used oil handled. A facility which accepts used oil from
               household do-it-yourselfers may be exempted from the state fee on the
               sale of new automotive oil.

Oil and Gas Waste Management
               The Railroad Commission of Texas (RRC) regulates activities and the
               wastes generated as a result of activities associated with the exploration,
               development, or production of oil or gas or geothermal resources,
               including transportation of crude oil or natural gas by pipeline. These
               wastes are termed “oil and gas wastes”, and include both hazardous and
               non-hazardous oil and gas wastes.

               The RRC has responsibility for the prevention of pollution that might
               result from activities associated with exploration, development, and
               production of oil, gas, or geothermal resources of the State to prevent
               operations dangerous to life or property. The RRC uses rule-authorization
               and permitting to regulate the storage, transport, processing, and disposal
               of oil and gas wastes in Texas to prevent releases to the environment.
               RRC rules require that oil and gas wastes be processed and disposed of
               only in an authorized or permitted manner RRC’s environmental and
               safety programs cover drilling, operation, and plugging of wells;

TCEQ/TSSWCB joint publication SFR-68/04                                                 107
         separation and treatment of produced fluids in the field or at natural gas
         processing plants; storage of crude oil before it enters the refinery;
         underground storage of hydrocarbons in slat caverns or natural gas
         depleted reservoirs; transportation of crude oil or natural gas by pipeline;
         drilling, operation and plugging of brine wells; and storage, hauling,
         reclamation, or disposal of wastes generated by these activities.

         The RRC’s environmental and safety regulations for oil and gas wastes are
         administered through the Environmental Services, the Well Plugging, the
         Site Remediation and Special Response, and the Compliance programs.
         The Environmental Services program includes permitting programs for
         management of wastes and protection of the public from surface storage or
         disposal, disposal and enhanced recovery wells, underground hydrocarbon
         storage and brine mining. The Environmental Services program also
         coordinates with other state and federal agencies on environmental and
         safety matters. The Compliance program coordinates the activities of nine
         district offices in inspecting oil and gas operations and enforcing the
         RRC’s environmental and safety rules. The Well Plugging and the Site
         Remediation and Special Response programs handle special Oil Filed
         Cleanup Fund (OFCUF). The OFCUF is supported by the oil and gas
         industry through various fees, taxes, and penalties. The Site
         Rememdiation and Special Response program also reviews operator
         cleanup activities and coordinates the RRC’s response to large spills an
         other major events.

The TCEQ Household Hazardous Waste Management
Program
         TCEQ’s Household Hazardous Waste (HHW) Management program
         primarily regulates HHW collections and programs. Technical and
         regulatory information is also provided to entities on setting up HHW
         collection programs as well as general information to citizens of Texas on
         HHW issues. Quarterly meetings of a HHW managers network are also
         coordinated.

Tire Disposal Program
         Scrap tires must be managed to prevent fires and control disease vectors
         (mosquitos and rats). The toxic air pollutants from tire fires can become
         nonpoint source water pollutants through atmospheric deposition. Prior to
         Texas' scrap tire management program, large illegal tire dumps often
         appeared on the beds and banks of streams, damaging riparian habitat. The
         TCEQ regulates the collection, processing and recycling/disposal of over
         20 million tires discarded each year in Texas. Anyone who stores more
         than 500 scrap tires must register with the TCEQ as a scrap tire storage
         site. Scrap tires must be hauled by a registered transporter to either a
         permitted landfill or an authorized scrap tire facility. All facilities must
         keep manifest records showing the disposition of scrap tires.


108                                             TCEQ/TSSWCB joint publication SFR-68/04
The City of San Antonio Waste Management Programs
               The City of San Antonio's Household Hazardous Waste (HHW) Program
               operates a permanent HHW Drop-off Center (DoC). This service provides
               an environmentally safe means for citizens to dispose of items such as
               paint, pesticides, oil, anti-freeze, batteries and household cleansers. If
               thrown in the regular trash, these items could potentially harm the solid
               waste collectors and contaminate our environment. The program has
               developed an outreach campaign, "Take it to the Doc!", that urges the
               public to dispose of hazardous household waste properly by bringing it to
               the HHW DoC.

               All collected HHW materials are handled and packaged for disposal by
               technically trained personnel. Following collection, the transport of all
               materials is performed by a licensed hazardous materials transporter. The
               method of disposal depends upon the type of material. Approximately
               80% of all materials collected through the City of San Antonio HHW
               Program are recycled. Materials that cannot be recycled are disposed of by
               a licensed hazardous materials treatment, storage and disposal facility.

City of Austin Biosolids Composting
               Another innovative strategy for wastewater management was developed
               by the City of Austin in the 1950's. Originally established as a series of
               stabilization ponds used to treat wastewater residuals from the city's
               wastewater plants, the Hornsby Bend Beneficial Reuse Program has
               become a nationally recognized, EPA award-winning sludge-recycling
               facility.

               Situated on 700 acres of land along the Colorado River, about 10 miles
               east of downtown Austin, the facility is a national model for innovative
               approaches to solving environmental problems. Each year, thousands of
               tons of wastewater sludge is anaerobically digested and composted into an
               EPA-certified soil conditioner called "Dillo Dirt". Waste products (tree
               trimming and yard waste), which would ordinarily be disposed of in a
               landfill, are utilized as bulking agents, significantly reducing the cost of
               waste disposal for Austin residents. This popular product is distributed to
               various city departments for use in park facilities and to commercial
               vendors for sale.

               Water separated from the sludge flows through a 250-acre facultative
               pond system. After polishing in a 4-acre greenhouse enclosed aquatic
               plant facility, the treated effluent is used to irrigate approximately 160
               acres of a 220-acre on-site farm. Hay and other feed crops are harvested
               from this land by a contract farmer, and the city receives a portion of the
               profits. Some digested and dried sludge is also land applied to the on-site
               farm to improve soil conditions. Plans are underway for the program,
               regulated by the TCEQ, to be expanded to off-site agricultural locations.



TCEQ/TSSWCB joint publication SFR-68/04                                                109
Wastewater Management
         Municipalities, industries, and agricultural operations can produce large
         volumes of wastewater. Unless proper disposal methods are used,
         wastewater can contaminate the state's surface and ground waters by
         contributing pathogens, organics, and metals to stormwater runoff.

         Multiple segments around the state are not meeting water quality criteria
         and improperly treated on-site sewage (OSSF) effluent has been identified
         as a major nonpoint source contributor. Historically, individual OSSFs
         were found primarily in rural areas. However, rapidly increasing urban
         populations, combined with shifts in population from rural to urban areas,
         have led to pressure for widespread suburban development. One way to
         reduce the amount of NPS pollution resulting from on-site sewage effluent
         is to develop centralized wastewater collection and treatment facilities.
         These facilities are regulated in Texas by the TCEQ to ensure that the
         effluent they release into the waters of the state is treated to certain
         standards that minimize NPS pollution. This is an example of a point
         source solution to a nonpoint source problem.

         Raw sewage and wastewater can increase levels of nutrients in water.
         Elevated nutrient concentrations encourage algal growth and decrease
         dissolved oxygen. Low dissolved oxygen endangers aquatic plants and
         animals. Following is a discussion of some of the programs in place to
         manage nonpoint source pollution from wastewater.

The On-Site Sewage Facility Program
         About 50,000 on-site wastewater treatment systems are installed annually
         in Texas to treat wastewater from rural and suburban homes and small
         businesses. An on-site wastewater treatment system collects, treats and
         applies wastewater to soil. By definition, wastewater managed by an
         on-site system cannot leave the property where it is generated. Texas has
         approximately 4-5 million households relying upon on-site sewage
         facilities (OSSF) for wastewater disposal and the numbers are increasing
         each year.

         The Texas legislature passed legislation to regulate on-site sewage facility
         systems statewide. The law established parameters for delegation of
         authority to regional and local governments-such as counties, cities, river
         authorities and special districts to implement and enforce on-site sewage
         regulations with approval and oversight by the TCEQ. The TCEQ sets
         minimum standards, local authorities can adopt more stringent rules if
         approved by the TCEQ.

         The TCEQ provides technical assistance for designers and installers of
         OSSF systems by reviewing plans to ensure that new facilities are
         designed and constructed using best current technology. TCEQ staff
         conduct plan reviews, installation inspections, and follow up inspections

110                                            TCEQ/TSSWCB joint publication SFR-68/04
               to ensure that designated controls are used and compliance with
               regulations is achieved. These inspections also assist in pinpointing areas
               of concern. Existing, failing systems are generally identified by citizen
               complaints and required to be brought to current standards. TCEQ staff
               also provide oversight of delegated local authorities.

               The TCEQ is also responsible for the certification of inspectors and
               installers of OSSFs. The responsibilities of a registered installer include
               the installation of treatment tanks and the installation or replacement of
               sewer lines or disposal components according to minimum state standards
               or the more stringent conditions in the authorized agent's order or
               ordinance. OSSFs must be constructed by licensed individuals who have
               been properly trained in appropriate installation procedures. Any
               individual who is compensated by another individual to construct, install,
               alter, or repair an on-site sewage facility must be licensed as an installer.
               Individuals who manage the on-site sewage program for an authorized
               agent must be licensed as a "designated representative." Designated
               representatives review planning materials, issue permits to construct,
               investigate and resolve complaints, initiate enforcement on violators, issue
               authorizations to operate, maintain records, and submit reports as required.

The Texas On-Site Wastewater Treatment Research Council
               Meeting the research and technology transfer needs of individuals
               involved in wastewater treatment in Texas is the major goal of the Texas
               On-site Wastewater Treatment Research Council. The Council was
               established by the Legislature to fund research that demonstrates the
               feasibility of on-site treatment alternatives. The Council awards
               competitive grants to accredited colleges and universities in Texas,
               governmental entities, or other acceptable public or private entities.
               Research funded by the grant must be for improvement in the quality, and
               reduction in cost, of on-site wastewater treatment technologies provided to
               Texans. The Council also awards grants to enhance technology transfer
               regarding on-site wastewater treatment by using educational courses,
               seminars, symposia, publications, and other forms of information
               dissemination. To support the research program, a $10 fee is charged to all
               property owners in Texas who apply to construct OSSFs for treatment and
               disposal of wastewater.

The City of El Paso Reclaimed Water System
               The City of El Paso Water Utilities (EPWU), one of the nation's most
               progressive water agencies, has been delivering reclaimed water since
               1963. As a pioneer in water reclamation, EPWU has attained international
               recognition for its innovative and extensive use of recycled water. EPWU
               now operates the most extensive and advanced reclaimed water system in
               Texas for industrial use and landscape irrigation.




TCEQ/TSSWCB joint publication SFR-68/04                                                111
         EPWU's philosophy is that water is too valuable to be used only once.
         Wastewater from within the EPWU collection area is collected and treated
         from one of four EPWU's Wastewater Reclamation Plants using advanced
         or tertiary treatment. The result is a high water quality that has earned the
         EPWU the reputation as operating the first wastewater treatment plant in
         the world to meet Drinking Water Standards for its reclaimed water. The
         other three plants meet the highest possible quality rating of Type I
         reclaimed water as described in state regulations monitored by the TCEQ.
         These facilities were constructed with funding from the U.S. Bureau of
         Reclamation grants, U.S. Economic Development Administration grants,
         Texas Water Development Board low interest loans, and City of El Paso
         Water and Sewer revenue bonds.

         Reclaimed water use has been proven safe for the following types of
         applications throughout the U. S. and are approved for use by the TCEQ:
         city parks, school playgrounds and sports fields, landscape nurseries,
         sports complexes, golf courses, street median landscaping, construction
         projects, street sweeping, fire protection, residential and multi-family
         landscape, industrial cooling towers, and other industrial processes. The
         EPWU is also authorized to reinject wastewater treated to drinking water
         standards into the local aquifer.

The Brazos River Authority Technical Assistance Program
         The Brazos River Authority (BRA) is committed to its mission of
         developing, managing, and protecting the water resources of the Brazos
         River Basin to meet the needs of Texas. The diversity that exists within
         the 42,000 square mile Brazos River Basin is extreme. Annual rainfall
         ranges from about 19 inches in West Texas to more that 56 inches along
         the gulf coast. Rapid and localized population growth, and ever changing
         land uses, presents the BRA with many challenges that must be planned
         for and addressed appropriately. To meet the needs of Texas, innovative
         measures are utilized to deal with issues such as moving water from areas
         with surplus water to areas with water deficits and removing constituents
         such as salt from both inland and gulf coast waters.

         Beginning in the early 1970's, the BRA pioneered the development of
         regional wastewater treatment systems to reduce the amount of NPS
         pollution resulting from OSSFs. Today BRA operates 4 regional
         wastewater treatment plants, 8 municipal wastewater treatment plants, one
         regional composting operation, and 3 water treatment plants. Over the
         years, BRA has received numerous awards from the TCEQ and EPA,
         recognizing the excellence of their operations, maintenance, and design.

         The BRA is a prominent and active partner in numerous water quality
         improvement projects and studies throughout the Brazos River Basin with
         a major emphasis on non-point source agricultural issues such as confined
         animal feeding operations (poultry and dairy) and crop production, and
         non-agricultural sources such as on-site sewage facilities. The BRA is

112                                             TCEQ/TSSWCB joint publication SFR-68/04
               committed to a positive and proactive approach to identify water quality
               problems and to follow through with appropriate restoration measures.

               The BRA also offers programs such as the Technical Assistance Program
               to assist cities, water districts, and other entities with their particular water
               and wastewater treatment operations. These services include regulatory
               review, operations assistance, preventive maintenance, program
               preparation, laboratory testing, and industrial pretreatment. A key
               component of the industrial pretreatment program is to work with
               cooperating industries to reduce their pollutants before they enter the
               sewerage system, thereby reducing the potential to impact water quality.

Storm Water Management
               Storm water pollution is a form of water pollution that originates from
               urban and rural landscapes. Everyday activities such as landscape
               maintenance, the operation of automobiles, and building construction can
               cause water pollution under certain circumstances. Pollution occurs when
               rainfall or infiltrating groundwater carry accumulated pollutants to
               receiving water bodies such as surface lakes, streams, and coastal waters
               or groundwater aquifers.

               The fertilizers used to maintain urban landscapes can cause excessive
               growths of aquatic vegetation and can lead to unhealthy concentrations of
               nitrates in groundwater used as drinking water supply. Metals and organic
               compounds associated with the operation of automobiles can be toxic or
               carcinogenic to human health and wildlife. Air emissions that originate
               from a multitude of industrial, urban, and mobile sources are deposited
               onto the ground, with the potential to add pollutants to surface and ground
               water when rainfall runoff occurs. Sediments that erode from land areas
               disturbed by construction activities can impair aquatic wildlife habitats,
               shorten the design life of reservoirs, and act as a carrier for contaminants.
               In addition, increased impermeable surface due to urbanization can alter
               the quantity and quality of storm water runoff by facilitating the
               transportation of runoff and accumulated sediments from paved surfaces.
               The water-related impacts of construction and urbanization can include
               habitat alteration, higher peak flows and flooding, erosion, and increased
               pollutant loads such as sediment, metals, nutrients, and bacteria. The
               following is a discussion of some of the programs in place throughout the
               state to address NPS pollution resulting from storm water runoff.

State Storm Water Permitting Programs
               The state of Texas assumed the authority to administer the National
               Pollutant Discharge Elimination System (NPDES) program in Texas on
               September 14, 1998. NPDES is a federal regulatory program to control
               discharges of pollutants to surface waters of the United States. The
               TCEQ’s Texas Pollutant Discharge Elimination System (TPDES) program
               now has federal regulatory authority over discharges of pollutants to

TCEQ/TSSWCB joint publication SFR-68/04                                                    113
         Texas surface water, with the exception of discharges associated with oil,
         gas, and geothermal exploration and development activities, which are
         regulated by the Railroad Commission of Texas (RRC).

         The urban storm water program administered through the TPDES program
         addresses small municipalities, growing urban fringe areas, and other
         urban development under the Phase II rules. If an urban area falls within
         the scope of the storm water program, a TPDES permit is required, a
         management plan for the reduction of the runoff impacts must be
         implemented locally, permit compliance must be evaluated, and
         maintenance of existing surface water quality must occur, consistent with
         the water quality standards. TPDES permits regulate storm water
         discharges from industrial activities, construction activities, and municipal
         separate storm sewer systems (MS4s) to Texas waters. The TCEQ issues
         and manages TPDES permits for storm water discharges from these
         activities and systems. Factors that EPA require states to consider in
         designating urban areas as so-called MS4s include discharges to sensitive
         waters, high growth areas or growth potential, contiguity to an existing
         urban area, significant contribution of pollutants to surface water, and
         ineffective protection of water quality by other state programs.

         Texas Land Application Permits (referred to as no discharge permits)
         authorize individual facilities to manage storm water and/or wastewater
         through evaporation, subsurface disposal, or irrigation systems which
         prevent runoff and prevent accumulation of nutrients in the soil. The
         TCEQ has a general permit which provides authorization for qualifying
         manure composting facilities to dispose of storm water through irrigation
         and/or evaporation.

         The RRC regulates discharges of waste from activities associated with the
         exploration, development, or production of oil, gas, or geothermal
         resources, including transportation of crude oil and natural gas by
         pipeline, and from solution brine mining activities (except solution mining
         activities conducted for the purpose of creating caverns in naturally-
         occurring salt formations for the storage of wastes regulated by the
         TCEQ). Discharges of waste regulated by the RRC into water in the state
         cannot cause a violation of the water quality standards. While water
         quality standards are established by the TCEQ, the RRC has the
         responsibility for enforcing any violations of such standards. In addition,
         the NPDES authority delegated to Texas by EPA does not include those
         discharges from activities under the RRC's jurisdiction; such a discharger
         must obtain authorization from both the RRC and the EPA.

Texas Department of Transportation Storm Water
Management Guidelines
         Involvement in construction and urbanization makes the Texas
         Department of Transportation (TxDOT) a key player in the control of
         storm water pollution. It is TxDOT's responsibility to be aware of the

114                                             TCEQ/TSSWCB joint publication SFR-68/04
               problem and to take measures to minimize and/or prevent storm water
               pollution. Therefore, it is the goal of TxDOT to prevent the degradation of
               receiving waters due to storm water runoff from highway operations.
               TxDOT is developing a comprehensive storm water management program
               aimed at achieving this goal.

               TxDOT has published a document entitled, "Storm Water Management
               Guidelines for Construction Activities". Although other issues are
               mentioned such as project planning and maintenance, the focus of the
               document is to provide guidance on the use of storm water management
               measures during highway construction.

               With this document, the user can develop a storm water management plan
               tailored to the needs of a particular project. In addition, the measures in
               this document will assist in meeting regulatory requirements where storm
               water is a concern. Although runoff control measures are required by law
               in some instances, these measures are applicable anywhere soil is
               disturbed and erosion and sedimentation are potential problems. The
               material in this manual is derived primarily from storm water guidance
               documents developed and adopted by the TCEQ.

The City of Dallas Trinity River Corridor Project
               The Trinity River Corridor Project is made up of several distinct elements.
               The overall effort will include the building of levees, wetlands, a
               downtown lake, gateway parks, trails, equestrian centers, and an
               interpretive center. It will also involve the expansion and preservation of
               the Great Trinity Forest through the acquisition of 2,700 acres of land
               along the Trinity River.

               One element of the Trinity River Corridor project is the construction of a
               flood control project along the Trinity River that will reduce the flooding
               risk for about 12,500 structures in Dallas. The Dallas Floodway Extension
               (DFE) will restore standard project flood (800-year) protection to the
               downtown Dallas vicinity and the densely populated areas along the
               southern Trinity River corridor.

               A Chain of Wetlands will be constructed in conjunction with the DFE.
               The Chain of Wetlands extends about four miles in length and is
               comprised of seven wetland cells that produce 170 acres of water surface.
               About 100 acres of grasslands will fill in between and around the wetland
               cells. The wetlands will be fed by treated wastewater discharge. The
               Chain of Wetlands also offer a secondary route for flood waters of the
               Trinity River lowering the flood elevations and filtering flood waters of
               nutrients and sediments prior to discharge into the Trinity River. The
               design team for the Chain of Wetlands includes the Corps, EPA, U. S.
               Fish and Wildlife Service, City of Dallas staff, TPWD, and the Trinity
               River Corridor Citizens Committee.


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The San Antonio River Tunnel
         The San Antonio River Tunnel system was constructed to lower the risk of
         damage due to flooding and help reduce nonpoint source pollution in
         storm water runoff discharged into the San Antonio River. The system
         consists of 12 trash rakes cycled on a daily basis to prevent large bulky
         floatable debris from entering the tunnel system and eventually the San
         Antonio River. During a storm event, the trash rakes are run as needed to
         ensure operational efficiency of the system. Approximately 500 tons of
         floatable debris is removed annually, with three tons removed weekly and
         the remainder from storm events.

         This facility also contains a re-circulation feature incorporating a Parkson
         screen that removes smaller debris prior to entering the San Antonio
         River. This re-circulation system helps maintain water quality in the
         famous downtown riverwalk during periods of low flow in the river. The
         tunnel is to remain full of water at all times allowing the re-circulation
         feature to ensure water quality is maintained in the tunnel itself so when
         initial flushing during a storm occurs, downstream water quality is not
         affected.

Integrated Storm Water Management Project
         The North Central Texas Council of Governments (NCTCOG) organized
         the integrated Storm Water Management (ISWM) project in order to
         protect streams and rivers from nonpoint source pollution and heightened
         flooding risks due to urban development. The project will foster
         partnerships with state and federal agencies to meet regulatory
         requirements and provide guidelines for communities to establish a
         successful comprehensive storm water management program. The project
         provides an innovative site development approach for addressing both
         storm water quantity and quality. The ISWM project is intended to be an
         essential element for ongoing and future cooperative storm water
         initiatives in North Central Texas.

         The NCTCOG is working with approximately 55 local governments in
         order to create sound storm water management guidance documents for
         the region through the ISWM project. The ISWM Design Manual for
         Development will outline the most current and applicable storm water
         management techniques and provide criteria and rationales for the
         selection of structural and nonstructural storm water quality and quantity
         BMPs.

The San Angelo Urban Nonpoint Source Abatement
Program
         The north fork of the Concho River winds through the City of San Angelo
         traversing residential, recreational, industrial, and commercial land use
         areas. This urban reach of the river has a long history of poor water


116                                             TCEQ/TSSWCB joint publication SFR-68/04
               quality and a record of frequent fish kills encompassing a period of at least
               thirty years. Several water quality studies conducted by private and public
               entities have confirmed that urban runoff and nonpoint source pollution
               have been the primary cause of poor water quality conditions.

               Recognizing the desire of city residents and stakeholders to improve water
               quality in the North Concho, the Upper Colorado River Authority (UCRA)
               partnered with the City of San Angelo to appoint a Citizen's Advisory
               Group to develop a plan for eliminating the fish kills and addressing
               nonpoint source pollution impacting the river. The work of the committee
               culminated in a Master Plan for pollution abatement targeting seven urban
               subwatersheds. The worst watersheds for pollutant loadings were
               identified and a priority system established for construction of facilities
               that would lessen the load of organic material and nutrients entering the
               river.

               The implementation plan includes construction of a gabion retention
               structure, stormwater control structures, and streambank stabilization. The
               plan is still in the process of being implemented. The best management
               practices that have been implemented have produced improvements in
               water quality expressed by the absence of fish kills following major storm
               events. The program also has involvement and support from local elected
               officials and the initiation of an extensive public outreach program, the
               Aquatic Experience, which is discussed in Chapter 7.

Pesticide Management
               Texas Pesticide Laws define a pesticide as a substance or mixture of
               substances intended to prevent, destroy, repel, or mitigate any pest, or any
               substance or mixture of substances intended for use as a plant regulator,
               defoliant, or desiccant. Pesticides enter water bodies through runoff from
               sites where there are applied such as farms, golf courses, parks, highway
               right-of-ways, and lawns and gardens; by leaching into groundwater;
               wastewater discharges; and atmospheric deposition. Pesticide
               contamination occurs as a result of improper or over use, spills, improper
               storage, and improper disposal. According to a USGS study of 48 drinking
               water reservoirs in Texas (September 2000), the pesticides most
               frequently detected in Texas drinking water reservoirs included atrazine,
               diazinon, metolachlor, and simazine. EPA has identified pesticide
               contamination as a nationwide problem in surface water and groundwater.
               In response, there has been a coordinated state effort to monitor pesticides
               and define roles and responsibilities in responding to the water quality
               effects of pesticide contamination.

               In addressing pesticide contamination several major principles need to be
               taken into account. Agricultural pesticides are beneficial and important to
               the production of food and fiber, and are of significance to the state
               economy. However, the use of pesticides should not impair any use of
               waters of the state or cause a public health hazard. Drinking water

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         supplies, both groundwater and surface water, should especially be
         protected. State and local government should be the first line of
         protection, their efforts being complemented by federal expertise and
         information. Efforts in Texas in addressing these issues include, for
         groundwater, the adoption of the Groundwater Pesticide Management
         Plan and, for surface water, the incorporation into this document, of a
         similar elaboration of management measures. These surface water
         pesticide management measures were primarily developed under the
         guidance of the Texas Watershed Protection Committee.

Groundwater Pesticide Management Plan
         Considerable progress has been made in the prevention of groundwater
         contamination from pesticides by laying out specific management
         measures in The State Management Plan for Prevention of Pesticide
         Contamination of Groundwater – usually referred to as the Groundwater
         Pesticide Management Plan or PMP. This plan was published in January
         2001 after several years of development under the guidance of the Texas
         Groundwater Protection Committee. A similar elaboration of management
         measures has been developed, by an interagency group, for the prevention
         of pesticide contamination of surface water. Many of the measures for
         preventing pesticide contamination of groundwater and surface water are
         the same, however, there are important differences.

Surface Water Pesticide Management
         The goal of surface water pesticide management is to provide a
         mechanism for the protection of surface water from pesticide
         contamination similar to that provided to groundwater under the PMP.
         The goal of surface water pesticide management is to protect and maintain
         the existing quality of surface water and to prevent the degradation of state
         surface water resources. This goal subscribes to unimpaired use of surface
         water, allowing for the normal use of pesticides without impairing surface
         water quality or posing a public health hazard. All used and potentially
         usable surface waters are subject to the same protection afforded by the
         antidegradation policy goal. This level of surface water protection
         complements the protection of groundwater influenced or hydrologically
         connected to surface water.

         Pesticide contamination of surface water is detected through the state’s
         assessment process as described in Chapter 5. Public water supplies are
         regularly monitored by the Public Drinking Water Section of the TCEQ.
         NPS pollution resulting from pesticides is managed through prevention
         and response to contamination. The Texas Watershed Protection
         Committee (defined in Chapter 4) coordinates these activities.

         Prevention and Mitigation
         The Texas Watershed Protection Committee recommends and coordinates
         a five tiered approach for prevention of pesticide contamination.

118                                             TCEQ/TSSWCB joint publication SFR-68/04
               #     General Education: General information is shared
                     statewide to raise awareness of the potential for pesticide
                     contamination. Brochures, displays, and slide presentations
                     are the tools used to raise awareness. These materials are
                     created and distributed throughout the state by the
                     cooperating agencies of the Texas Watershed Protection
                     Committee (TWPC).

               #     Education Focused on Affected Water Bodies:
                     Educational efforts will be expanded in areas where a surface
                     drinking water source is identified as affected by specific
                     pesticides. This effort will be applied even though
                     monitoring has not shown contamination beyond the
                     Maximum Contaminant Level (MCL). Dissemination of
                     information will be through public presentations, articles in
                     newsletters, and advertisement of available educational
                     literature.

               #     Education and Application of Best Management Practices
                     (BMPs) in Areas with Lower Levels of Pesticides: Where
                     monitoring has revealed contamination of surface water used
                     as a drinking water source, but at concentrations lower than
                     the pesticide MCL or Health Advisory Level (HAL), a
                     voluntary BMP program will be encouraged. Furthermore,
                     cooperating agencies may take additional action through their
                     standard education programs.

               #     Education and Application of BMP’s in Areas with
                     Greater Levels of Pesticides: In a surface water body used
                     as a drinking water source, where monitoring has revealed a
                     nonpoint source contamination by a pesticide at levels
                     greater than the MCL or HAL, a voluntary education and
                     BMP program will be initiated. If there is no evidence of
                     sufficient improvement, use restrictions will be implemented.
               #     Pesticide Use Restrictions: If all previous levels of
                     preventive measures fail, the final recourse will be use
                     restriction of the pesticide in the water body which is
                     contaminated. Such actions will be implemented by the TDA
                     after consultation with the other involved agencies through
                     the TWPC. Users will be notified of the restricted use status
                     of the pesticide in their area.

               Response to Contamination
               The response to contamination of surface water by pesticides falls under
               the jurisdiction of a number of agencies. Pesticide runoff is typically
               treated as an agricultural nonpoint source pollution therefore, the

TCEQ/TSSWCB joint publication SFR-68/04                                              119
         TSSWCB plays a key role in response. The TCEQ Source Water
         Assessment and Protection (SWAP) program provides response assistance
         when the water body is a drinking water supply. The Texas Department of
         Agriculture (TDA), the lead regulatory agency for agricultural pesticides,
         provides expertise on pesticide regulation and education. When pesticide
         contamination results in a surface water body not meeting standards the
         response is addressed through the TMDL process as described in Chapter
         5. When the pesticide contamination does not result in a standards
         violation response occurs through the preventive actions described above
         and, if the local entity responsible for the affected water body chooses to
         participate, through the TCEQ’s SWAP program described below. The
         TWPC coordinates all responses to pesticide contamination to ensure that
         the responsible agencies or programs are notified and take appropriate
         action.

         Implementation Under Source Water Assessment Program
         Under the Source Water Assessment Program (SWAP) all surface waters
         that contribute to public drinking water supplies are investigated for
         potential contamination. Investigations proceed in the following stages:

         #    Identification of areas that supply public drinking water
         #    Delineation of the boundaries of the assessment areas needed
              to protect the water supplies
         #    Inventorying of potential sources of contamination within the
              assessment areas
         #    Informing the public of the results
         #    Implementation of a source water protection program (see
              page 113)


Pesticide Review Program
         The EPA reviews and registers pesticides to ensure they meet current
         scientific and regulatory standards. Through this process consideration is
         made for human health and ecological effects of pesticides. The EPA
         issues risk management decisions based on the reviews that may result in
         registration eligibility, risk reduction measures, or elimination of uses.
         Risk factors that are analyzed include risks to workers, risks associated
         with residential uses, and risks affecting drinking water. Measures used to
         address risks include requiring intensive monitoring programs, prohibition
         of use in specified geographic areas or watersheds, education programs to
         ensure proper use and mitigation requirements. The State of Texas has
         developed programs to enforce and ensure compliance with this EPA
         program at the state level.




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Agricultural Pesticide Regulation
               The Texas Department of Agriculture (TDA) is the State's lead regulatory
               agency for agricultural pesticide regulation. The Texas Pesticide and
               Herbicide Laws grant TDA the authority to enforce the provisions of the
               law pertaining to the registration, distribution, and use of all agricultural
               pesticides. TDA is responsible for licensing all agricultural pesticide
               applicators and labeling, storage, sales, usage, and disposal of all
               pesticides. TDA also cooperates with other state agencies that have
               statutory pesticide responsibilities, such as the TCEQ, the Structural Pest
               Control Board, and the DSHS. TDA is responsible for the enforcement of
               federal pesticide laws under a cooperative agreement with the EPA.

               The TDA cooperates with all agricultural producers and other users of
               pesticides to make certain that all pesticides are used safely and according
               to instructions. The Texas Pesticide Control Act requires that pesticides be
               stored in a manner that will reasonably ensure that human food, domestic
               and public water, pet foods, drugs, animal feeds, commercial fertilizers,
               seeds, or clothing will not be contaminated. The law also directs that
               pesticide containers be disposed of as directed on the label or by any other
               methods approved by the TDA. Any use of pesticides inconsistent with
               label directions is a violation of the law and may subject the user to
               penalties under federal and state law.

               The TDA is also responsible for developing and implementing the State of
               Texas Plan for Certification of Pesticide Applicators. All application
               equipment used by commercial applicators must be registered, and is
               subject to inspection at any reasonable time. The Texas Cooperative
               Extension is responsible for training in relation to the state pesticide
               applicator certification program.


The Structural Pest Control Board
               The Structural Pest Control Board (SPCB) is authorized to promulgate
               rules and regulations governing the methods and practices pertaining to
               structural pest control to prevent adverse effects on human health and the
               environment. SPCB has established regulations which authorize it to
               enforce label instructions approved by EPA and TDA regarding
               application and disposal of pesticides in the urban environment. Many
               label instructions contain information relating to proper application and
               disposal of pesticides to prevent surface water contamination.

               In addition, the SPCB licenses businesses, certified commercial
               applicators, certified noncommercial applicators, technicians, technician
               apprentices, non-commercial applicator apprentices, and management
               technicians in the structural pest control industry. The SPCB also has the
               authority to take action against any licensee for engaging in practices that
               could be detrimental to public health, safety, or the environment. The

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         SPCB also has the authority to perform inspections to monitor pesticide
         use and investigate complaints regarding label violations.

Agriculture Resource Protection Authority
         The Agriculture Resource Protection Authority (ARPA) is the
         coordinating body for TDA, TSSWCB, TAES, DSHS, TCEQ, and SPCB
         with respect to their policies and programs for management, regulation,
         and control of pesticides. In addition, ARPA helps to avoid overlapping
         responsibilities of the state agencies, facilitates all the involved agencies
         participation in the regulation of pesticides, and helps demarcate the
         various areas of responsibility of the participating agencies.

         ARPA may cooperate with and advise the member agencies or any other
         state agency that may be concerned with the regulation of pesticides and
         review any rule relating to pesticides that is proposed by any of its
         member agencies, except rules under Chapter 125 of the Texas
         Agriculture Code. ARPA can inform and advise the governor on matters
         involving pesticides, prepare and recommend to the governor and to the
         legislature any legislation that ARPA considers proper for the
         management and control of pesticides, and make annual reports to the
         governor and the appropriate legislative oversight committees.

The Agricultural Waste Pesticide Collection Program
         The TCEQ, partners with Texas Cooperative Extension (TCE) and Texas
         Department of Agriculture (TDA), to organize regional waste pesticide
         collections held statewide. The free collections provide agricultural
         producers and other Texans with an opportunity to dispose of pesticides
         and other household hazardous wastes at no expense and with no
         questions asked. In addition, mercury fever thermometers are accepted and
         replaced at no charge with mercury-free thermometers. The program is
         strictly voluntary. Participants are asked to answer several survey
         questions. The survey responses are evaluated to determine program
         effectiveness.

Agricultural Management
         Texas has the largest number of farms and the most land in agricultural
         production in the United States. According to the 1997 Ag Census, 77% of
         the land area of Texas was in agricultural production. Of this, there are
         26,762,000 acres of cropland, 15,807,000 acres of pastureland, and
         95,323,000 acres of rangeland. In addition, there are almost 400 cattle
         feedlots, over 1200 dairies, approximately 100 hog operations, and over
         1300 poultry operations in Texas.

         Agricultural activities are a potential source of nonpoint source pollution.
         Possible nonpoint source pollutants associated with agricultural activities
         include nutrients, pesticides, organic matter, sediment and bacteria. These


122                                              TCEQ/TSSWCB joint publication SFR-68/04
               pollutants may be transported to surface waters through runoff or eroded
               soil particles. Pesticides and nutrients may also leach into groundwater or
               be transported through avenues such as abandoned and improperly
               constructed wells or through naturally occurring hydrologic connections.
               Below is a discussion of some programs in place to address nonpoint
               source pollution resulting from agricultural activities.

Agricultural Waste Permitting
               Animal feeding operations, such as feedlots, dairies, and poultry
               operations, can be a source of pollutant discharges following rainfall
               events. An animal feeding operation is required to apply for a wastewater
               permit if it exceeds a given number of animals. These concentrated animal
               feeding operations (CAFOs) are prohibited from directly discharging into
               surface waters except under catastrophic rainfall or a chronic rainfall
               event.

               Animal Feeding Operations (AFOs), which have fewer animals than
               CAFOs, do not require written authorization. AFOs are under the purvue
               of the Texas State Soil and Water Conservation Board (TSSWCB) and
               must meet the same technical requirements as a CAFO. All poultry
               operations must obtain a TSSWCB-certified water quality management
               plan (WQMP). However, by April 13, 2006, dry litter poultry operations
               meeting certain size requirements must obtain written authorization. AFOs
               and CAFOs may receive technical assistance from the TSSWCB and the
               U.S. Department of Agriculture-Natural Resources Conservation Service
               (USDA-NRCS).

               The TCEQ Agriculture Permitting Program reviews technical designs of
               CAFOs for new facilities, facilities being modified or increased, and for
               facilities renewing their authorization. The designs are reviewed for
               selection, implementation, and use of environmentally sound BMPs to
               collect, store and utilize waste and wastewater and to control air emissions
               and odor in a manner to conform with good agricultural management
               practices. Waste and wastewater must be properly land-applied for
               beneficial use on agricultural land at agronomic rates.

               A Pollution Prevention Plan (PPP) must be prepared for every CAFO
               facility in the State. The PPP must be prepared in accordance with good
               engineering practices and include measures necessary to limit the
               discharge of pollutants to waters in the state. The PPP must describe
               practices which are to be used to assure compliance with the CAFO rules.
               Specific components of a PPP include a site plan indicating all animal
               confinement areas, waste treatment/retention facilities, waste/wastewater
               application areas, management of waste/wastewater application areas at
               agronomic rates, as well as an identification of potential pollutant sources
               used, stored, or disposed of at the facility. Any recharge zone/features
               must be located, evaluated and protected. Procedures for monitoring
               discharges and sampling of land application areas are included in the PPP.

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         Also, descriptions of all other protective measures or BMPs used to
         control potential pollutant sources must be included in the PPP.

TSSWCB Water Quality Management Plan Program
         Texas Agriculture Code, §201.026 makes the TSSWCB responsible for
         planning, implementing, and managing programs and practices for abating
         agricultural and silvicultural nonpoint source pollution. This is primarily
         accomplished through the TSSWCB Water Quality Management Plan
         Program, which was established in 1993 by the Texas Legislature when it
         passed Senate Bill 503. Senate Bill 503 authorized the TSSWCB to assist
         agricultural and silvicultural producers in meeting the state's water quality
         goals and standards through this voluntary, incentive-based program.

         Through this program, agricultural and silvicultural producers develop and
         implement site specific water quality management plans (WQMPs) in
         cooperation with local Soil and Water Conservation Districts (SWCDs).
         The WQMPs include appropriate land treatment practices, production
         practices, management measures, technologies or combinations thereof,
         and an implementation schedule.

         Local SWCDs provide technical assistance to develop the plan through
         agreements with United States Department of Agriculture Natural
         Resources Conservation Service (USDA-NRCS) or the TSSWCB. After
         being approved by the district, the developed plan requires TSSWCB
         certification. Certified water quality management plans ensure farming or
         ranching operations are carried out in a manner consistent with state water
         quality goals. The state legislature provides funding through the TSSWCB
         for the implementation of WQMPs.


The Dairy Outreach Program
         Some areas of the state have been identified as having water quality
         problems and concerns resulting from point and NPS pollution as a result
         of animal feeding operations. These areas are involved in the TCEQ's
         Dairy Outreach Program and include Erath, Bosque, Hamilton, Comanche,
         Johnson, Hopkins, Wood, and Rains counties. The TCEQ, TCE, and
         TSSWCB conduct various NPS related activities in the Dairy Outreach
         Program Areas (DOPA):

         #    Presentations to producer groups on water quality protection
              and the NPS program
         #    Review of permit applications for dairies, feedlots, and
              poultry facilities
         #    Information on CAFOs rules
         #    Education and training to producers on NPS issues such as
              land application of manure


124                                             TCEQ/TSSWCB joint publication SFR-68/04
               Owners/operators of CAFOs located in the Dairy Outreach Program
               Areas, and operating under the state's CAFO rules, must complete an
               initial eight-hour course and subsequent eight hours every two years of
               continuing education in animal waste management. Similarly, employees
               of any CAFO responsible for work activities relating to compliance must
               be regularly trained or informed of information pertinent to the proper
               operation and maintenance of the facility and waste disposal. Employees
               at all levels of responsibility shall be informed of the general components
               and goals of the PPP. Training topics include land application of waste,
               proper operation and maintenance, good housekeeping and material
               management practices, recordkeeping requirements, and spill response and
               cleanup.

The Texas Brush Control Program
               The TSSWCB also achieves nonpoint source abatement through the
               implementation of the Texas Brush Control Program. The Texas Brush
               Control Program was created to enhance the State's water resources
               through selective control of brush species. This program is a voluntary
               program in which landowners may contract with the state for cost-share
               assistance. Local SWCDs assist landowners with development of
               resource management plans addressing brush control, soil erosion, water
               quality, wildlife habitat and other natural resource issues.

The Agricultural Loan Program
               The Texas Water Development Board (TWDB) provides grants and loans
               for agricultural water conservation equipment and practices which
               promote, demonstrate, or evaluate more efficient use of irrigation in
               agriculture. Grants are available to political subdivisions and state
               agencies. Loans are also available to political subdivisions and individuals
               through political subdivisions or a linked deposit program. The use of
               more efficient practices can reduce agricultural NPS loadings in surface
               and groundwater.

The Private Lands Enhancement Program
               Through the Private Lands Enhancement Program, the Texas Parks and
               Wildlife Department (TPWD) provides technical assistance to persons
               who desire to include wildlife management considerations in present or
               future land use practices. On request, a TPWD biologist will meet with the
               land manager and conduct an inspection of the property. The land
               manager will be asked to define the various needs and uses of the property
               and to establish an objective for wildlife considerations. The biologist will
               provide recommendations which may include a written management plan.
               Field biologists work with individual landowners on request to develop
               land management plans which use environmentally and economically
               sound land use practices. Implementation of the management plan is


TCEQ/TSSWCB joint publication SFR-68/04                                                125
         completely voluntary. Practices include grazing rotation and management
         for increased grass cover. Filter strips in riparian areas are established.
         Upland erosion controls and establishment of vegetative cover reduce
         runoff and allow filtration. Strip removal practices for cedar are used to
         decrease loss of subsurface water to cedar. These practices combined lead
         to improved infiltration, increased water retention, and in some instances
         the rejuvenation of natural springs.

The Environmental Quality Incentives Program
         Resources available to address issues related to nonpoint sources from
         privately owned agricultural land were significantly enhanced by the
         passage and implementation of the 2002 Federal Farm Bill. The
         Environmental Quality Incentives Program (EQIP) in the Conservation
         Title of the 2002 Farm Bill is a voluntary conservation program that
         promotes agricultural production and environmental quality as compatible
         goals. Through EQIP, farmers and ranchers may receive financial and
         technical assistance to install or implement structural and management
         conservation practices on eligible agricultural land. EQIP is administered
         by the USDA-NRCS, but the priorities for allocation and distribution of
         funds are established with input from a State Technical Committee that is
         composed of representatives from federal and state resource agencies and
         organizations that are associated with agriculture. The TSSWCB and
         TCEQ are represented on this committee. In Texas, financial assistance
         funds will be used to address both the local high priority practices
         identified by the Local Work Groups that are chaired by soil and water
         conservation districts and the statewide resource concerns identified by
         the State Technical Committee. The State Technical Committee and Local
         Work Groups recommend the practices eligible for cost share and the cost
         share rates that will be paid. Eligible persons may select to apply in the
         county-based program recommended by the Local Work Group or in one
         of the Statewide Resource Concerns recommended by the State Technical
         Committee. Landowners and operators will choose the practices and
         evaluation systems that best fit their needs.

         The availability of EQIP, active participation in the State Technical
         Committee, Local Work Groups, and accommodation of recommendations
         from the State Technical Committee by the State Conservationist have
         provided opportunities to focus resources on problem areas that were
         previously difficult or impossible to address. The voluntary nature of the
         program has enabled the state technical committee and the USDA-NRCS
         to establish state level resource concerns. By bringing this program down
         to the state level they are able to provide a portion of funds as incentive
         payments to producers that implement structural and management
         practices to address specific environmental problems. Before, EQIP
         funding assistance for individual land owners and agricultural producers
         was unavailable or very difficult to obtain. Through the State Technical
         Committee, the USDA-NRCS has actively pursued information on areas
         of the state where changes or adjustments in practices by individual land

126                                            TCEQ/TSSWCB joint publication SFR-68/04
               owners would be needed to contribute to the alleviation of identified
               environmental problems. This has enhanced the opportunities for
               regulatory agencies to use a combination of regulatory and voluntary
               practices to address specific problem areas impacted by nonpoint sources
               or a combination of point sources and nonpoint sources.

The Watershed Program
               The purpose of the Watershed Program, administered by the
               USDA-NRCS, is to assist Federal, State, local agencies, local government
               sponsors, tribal governments, and program participants to protect and
               restore watersheds from damage caused by erosion, floodwater, and
               sediment; to conserve and develop water and land resources; and solve
               natural resource and related economic problems on a watershed basis. The
               program provides technical and financial assistance to local citizens or
               project sponsors, builds partnerships, and requires local and state funding
               contribution.

               Resource concerns addressed by the program include watershed
               protection; flood prevention; erosion and sediment control; water supply;
               water quality; opportunities for water conservation; wetland and water
               storage capacity; agricultural drought problems; rural development;
               municipal and industrial water needs; upstream flood damages; water
               needs for fish, wildlife, and forest-based industries; fish and wildlife
               habitat enhancement; wetland creation and restoration; and public
               recreation in watersheds of 250,000 or fewer acres.

               Plans or surveys including watershed plans, river basin surveys and
               studies, flood hazard analyses, and flood plain management assistance are
               developed to identify solutions that use conservation practice and
               nonstructural measures to solve resource problems. If approved, technical
               and financial assistance is provided for installation of improvement
               measures specified in the plans.

Conservation Technical Assistance Program
               The Conservation Technical Assistance program, administered by the
               USDA-NRCS, provides voluntary conservation technical assistance to
               land-users, communities, units of state and local government, and other
               Federal agencies in planning and implementing conservation practices that
               address natural resource issues. The program encourages and assists
               citizens to voluntarily conserve, improve and sustain natural resources.

Conservation Reserve Program
               The principal mission of the Farm Services Agency (FSA) is designed to
               stabilize farm income, assist farmers with conservation of land and water
               resources, provide credit to new or disadvantaged farmers and ranchers,
               and help farm operations recover from the effects of disaster. Many of the


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         FSA operated programs are funded through the Commodity Credit
         Corporation (CCC), a government owned and operated corporation
         established to stabilize, support, and protect farm income and prices.
         The Conservation Reserve Program is a voluntary program administered
         by the FSA that offers annual rental payments, incentive payments, annual
         maintenance payments for certain activities, and cost-share assistance to
         establish approved cover on eligible cropland. The program encourages
         farmers to plant long-term resource-conserving cover to improve soil,
         water, and wildlife resources. The CCC makes available cost-share
         assistance in an amount equal to not more than 50% of the participant's
         costs in establishing approved practices. Contract duration is between 10
         and 15 years. The NRCS, Cooperative State Research and Education
         Extension Service, state forestry agencies, and local soil and water
         conservation districts provide technical support for this program.

USDA-Agricultural Research Service
         The Agricultural Research Service (ARS) is the principal in-house
         research agency of the USDA. ARS conducts research to develop and
         transfer solutions to agricultural problems of high national priority. The
         mission of the ARS is to increase understanding and develop solutions to
         protect the Nations's soil and water resources. Two of the twenty-two ARS
         National Programs, Water Quality Management and Soil Resource
         Management, are strongly committed to applied nonpoint source pollution
         research. In Texas, ARS is conducting ongoing research on NPS related
         issues such as: land application of municipal and agricultural wastes;
         improved management of soil, water, nutrients, and chemicals in
         agricultural production systems; and enhanced simulation tools for water
         quality, hydrology, and crop growth. ARS research, conducted by
         laboratories throughout the state, is often carried out in cooperation with
         universities, state research and extension centers, and private
         organizations.

The Texas Institute for Applied Environmental Research
         The Texas Institute for Applied Environmental Research (TIAER) was
         established as part of the Texas A&M System to conduct applied research
         on environmental issues that have public policy implications. TIAER is
         also responsible for providing national leadership on emerging
         environmental policy and to provide a setting for environmental studies on
         the interface between government and the private sector. Establishing
         interdisciplinary programs or partnerships to develop and implement new
         policies, technologies, strategies, and relationships is another
         responsibility of TIAER. Partnerships with other universities and state
         agencies build on the strengths of each entity to produce an effective,
         efficient program.

         The TIAER goal is to impact state and national environmental policy. A
         fundamental principal to this goal is improvements in the environment are

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               best accomplished by conducting scientific research and using research
               results to formulate policy recommendations that will actually be
               implemented by government and other institutions. TIAER seeks to use
               cutting-edge strategies and technologies to assist developers and
               implementers of environmental policy.

               TIAER staff performs ambient monitoring and analyzes data to assess
               nonpoint source impacts to receiving waters and improvements to
               receiving water from best management practice implementation. TIAER
               also works to refine and apply computer models to simulate and evaluate
               nonpoint source management practices.

The Texas Water Resources Institute
               The Texas Water Resources Institute is a unit of the Texas Agricultural
               Experiment Station and Texas Cooperative Extension. It is part of a
               national network of institutes created by the Water Resources Research
               Act of 1964. The Institute is funded by the United States Geological
               Survey and is affiliated with the National Institutes for Water Research.

               The Texas Water Resources Institute serves as a focal point for
               water-related research at Texas universities, encouraging discussion of
               statewide issues through meetings and multi-university studies. The
               Institute links academic expertise with state and federal agencies,
               strengthening water research and education. Additionally, the Institute
               provides leadership for water resource programs through grant
               administration, pre-award services, project management, communication,
               and facilitation of interagency collaboration.

The Lower Colorado River Authority - Creekside
Conservation Program
               The Lower Colorado River Authority (LCRA) is dedicated to land
               stewardship through several innovative conservation programs. The
               LCRA has joined with numerous partners throughout the state to promote
               land conservation and preserve wildlife habitat in Central and South
               Texas.

               As farmers and ranchers lose topsoil to erosion, land productivity
               decreases. Thousands of acres of valuable soil are washed into tributaries
               and lakes every year. This sediment can build up to create flood
               management problems, threaten aquatic habitats, and reduce groundwater
               recharge. Waterways also suffer from excessive sedimentation and
               nonpoint source pollution.

               Since 1990, LCRA's Creekside Conservation Program has worked with
               landowners and state and federal agencies to reduce sedimentation and
               agricultural nonpoint source pollution on privately owned land in eleven
               counties. The LCRA strongly emphasizes brush management to improve

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         vegetative cover that reduces erosion, increases land productivity, filters
         groundwater, and enhances wildlife habitat. In recent decades, the spread
         of invasive brush species, particularly cedar and mesquite, over Central
         Texas rangelands has choked out native grasses and plants that benefit
         water quality and quantity.

         Local Soil and Water Conservation Districts (SWCDs) help landowners
         with project planning in the Colorado River basin. The local office of the
         USDA-NRCS selects potential sites and qualified landowners to
         participate in the Creekside Conservation Program. Local SWCDs
         approve the projects and submit them to LCRA for final approval. Upon
         completion of the project, the landowner is reimbursed for up to half of
         the cost of the conservation project. The NRCS and LCRA staff monitor
         success of each project on an annual basis.

Silvicultural Management
         Texas has more than 23 million acres of forested land. Half of this area,
         roughly 11.8 million acres, is considered commercial timberland. Most
         streams that originate or flow through these timberlands are sources of
         water supply, prime recreation, and other high quality uses. Because of
         this, forest management programs have been developed to implement
         adequate measures to protect water quality. Below is a discussion of some
         of the programs in place to address the nonpoint source problems resulting
         from silvicultural activities.

The Texas Forest Service Resource Development Program
         The Texas Forest Service (TFS) resource development program provides
         professional assistance to non-industrial private landowners, including
         services such as, development of forest management plans, assistance in
         implementation of reforestation and timber stand improvement practices,
         prescribed burning, and fireline plowing. It administers several state and
         federal cost share programs which promote reforestation and stewardship.
         Emphasis is placed on developing the state's timber resource in an
         environmentally sound manner to meet present and future needs.

The Forest Stewardship Program
         The Forest Stewardship Program (FSP), a USDA Forest Service program,
         provides technical assistance, through State forestry agency partners, to
         nonindustrial private forest (NIPF) owners. The program encourages and
         enables active long-term forest management. A primary focus of the
         program is the development of comprehensive, multi-resource
         management plans that provide landowners with the information they need
         to manage their forests.




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The Forest Land Enhancement Program
               The Forest Land Enhancement Program (FLEP), administered by the
               USDA Forest Service, is a voluntary program that provides technical,
               educational, and cost-share assistance to non-industrial private forest
               (NIPF) landowners. Eligible landowners must have an approved Forest
               Stewardship Plan.

Pollution Prevention
               The key to controlling nonpoint source pollution is often prevention.
               Preventing contaminants from reaching water in the first place mitigates
               environmental risks from pollution and eliminates the need for expensive
               clean-up programs. Community, business, and citizen involvement are
               integral to successful pollution prevention. There are many simple day to
               day activities citizens can do to prevent pollution. Educating citizens
               about what those activities are and implementing prevention programs can
               be accomplished on a larger scale by federal, state, or local government
               programs. Following is a discussion of several programs that work with
               citizens, businesses, and industry to encourage voluntary implementation
               of pollution prevention activities.

The Site Visit Program
               The TCEQ offers free, confidential on-site environmental compliance
               assessments (site visits) to local government facilities and independently
               owned and operated businesses with 100 or fewer total employees. After a
               site visit, the facility operator receives a report from the consultant
               outlining environmental compliance deficiencies and a copy of the
               consultant's compliance checklist. The consultant will provide specific
               recommendations on how the facility can achieve full compliance and
               possibly reduce regulatory burden.

The Small Towns Environment Program
               The Texas Small Towns Environment Project (STEP) was designed to
               assist small towns, unincorporated communities, subdivisions, colonias, or
               clusters of homes with urgent drinking and wastewater problems. The
               TCEQ provides technical assistance and support to community leaders and
               residents who are willing to solve problems through self-help. Texas
               STEP agents work collaboratively with community residents to pull
               together local resources to initiate a drinking water and/or wastewater
               project. The Texas STEP is a partnership between the TCEQ, Texas
               Department of Housing and Community Affairs, the DSHS, TWDB, and
               GLO with support from the national Small Towns Environment Program
               of the Rensselaerville Institute.




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The Texas Country Cleanup Program
         The TCEQ, in cooperation with TCE and TDA, conducts free, one-day
         collections at 30-40 locations across the state annually for citizens in rural
         and agricultural communities to bring materials for recycling or disposal.
         Texas Country Cleanups offer residents recycling opportunities for
         materials specific to rural and agricultural materials. The materials
         accepted in these collections include triple-rinsed empty pesticide
         containers, used motor oil, used oil filters, and lead-acid batteries.

Supplemental Environmental Projects
         Supplemental Environmental Projects (SEPs) prevent or reduce pollution,
         enhance the quality of the environment, and increase environmental public
         awareness. The SEP program, administered by the TCEQ, provides the
         opportunity for the respondent in an enforcement action to negotiate an
         agreement to perform an SEP in return for a reduction in administrative
         penalties. Potential SEPs include cleanup of abandoned illegal dump sites;
         community household hazardous waste collections; purchase of Water
         Wise kits for local schools; and on-site pollution prevention projects that
         exceed regulatory requirements.

The Clean Texas Program
         The Clean Texas Program is a voluntary environmental leadership
         program to protect the state's air, water, and land. The program offers
         benefits and incentives to members who commit to improving the
         environment and sustaining a quality of life for future generations. The
         Clean Texas Program is open to industries, businesses, cities, counties,
         schools, universities, military bases, nonprofit groups, and other
         organizations. Clean Texas Program "partners" make commitments to
         measurable environmental improvement goals, internal environmental
         programs, and community environmental outreach programs or projects.
         Clean Texas Program "leaders" make these same commitments and in
         addition, pledge to implement a system to assure compliance and
         continuous improvement (environmental management system, strategic
         plan, business plan), a community communication program, and a system
         to review and measure the environmental impact of products, processes,
         and community services (product stewardship program).

Oil and Gas Waste Minimization Program
         The Oil and Gas Waste Minimization Program, administered by the
         Railroad Commission of Texas (RRC), offers assistance to oil and gas
         operators interested in minimizing wastes through source reduction and
         recycling of oil and gas wastes. The RRC's program includes several
         products and services, including a manual, workshops, technology
         transfer, waste minimization planning software, a newsletter, and on-site
         assistance.


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Texas Chemical Council
               The Texas Chemical Council (TCC) is a statewide trade association of
               chemical manufacturing facilities in Texas. The TCC represents the Texas
               chemical industry in environmental protection, health and safety issues,
               tort reform, and energy policy. As a partner in the TCEQ Clean Texas
               program, the Texas Chemical Council (TCC) encourages all its member
               companies to participate as program members, committed to fulfilling the
               requirements of membership. The TCC and its member companies strive
               to conserve natural resources, cultivate environmentally responsible
               business activities, foster product stewardship, and handle waste
               responsibly. The TCC supports other environmental goals such as
               recycling and the protection of vital habitats, wetlands, and endangered
               species.

Protection for Drinking Water Sources
               Many Texans get their drinking water from large scale municipal water
               systems that rely on surface water resources, such as rivers, lakes, and
               reservoirs. Others depend on private sources, such as wells and aquifers.
               Contamination can occur in surface or groundwater supplies from
               wastewater discharges, urban and agricultural runoff, leaking underground
               storage tanks, improperly maintained on-site sewage facilities, waste sites,
               abandoned wells, and deposition of airborne pollutants. The State of Texas
               pays special attention to protecting surface and ground water supplies that
               serve as a source of drinking water. Protecting drinking water at the
               source makes good public health, economic, and environmental sense.
               Below is a discussion of the state programs that focus on the protection of
               drinking water sources.

Underground Injection Control
               Underground Injection Control (UIC) involves the protection of
               underground sources of drinking water (USDW) through the regulatory
               oversight of injection wells. Given the broadest interpretation for statutes
               covering Underground Injection Control (UIC), any water could be
               determined to be fresh water provided it has beneficial use. The UIC
               program interprets "fresh water" as water with 10,000 mg/l or less Total
               Dissolved Solids (TDS), with the understanding that the broader statutory
               definition may be strictly applied whenever necessary to protect water
               containing greater than 10,000 mg/l TDS (30 TAC §331.2).

               The TCEQ's authorized UIC program has elected to not specifically
               designate or geographically delineate aquifers as underground sources of
               drinking water. Any aquifer or portion thereof that fits the definition is
               considered an underground source of drinking water (USDW), even if not
               affirmatively identified as such by the agency.




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         Injection wells are divided by class; specifically, Class I through Class V.
         In Texas, regulatory responsibility for the subsurface injection of fluids
         and waste lies with either the Railroad Commission of Texas (RRC) or the
         TCEQ, depending mainly on the class of injection well, the intended use
         of the well, or in the case of Class III wells, the mineral to be mined.

         #    Class I - hazardous wastes injected beneath the lowermost
              formation containing an USDW. All Class I wells are
              regulated by the TCEQ through injection well permits.
         #    Class II - "oil and gas waste", including salt water. All Class
              II wells are regulated by the RRC through injection well
              permits.
         #    Class III - extraction of minerals, exclusive of oil and natural
              gas (uranium, sodium sulfate (potash), brine and sulfur. Brine
              injection wells are regulated by the RRC through permits, all
              other Class III injection wells under TCEQ.
         #    Class IV -hazardous wastes into or above a formation which
              contains an USDW within one-quarter mile of the wellbore.
              Class IV injection wells are generally prohibited by the
              TCEQ rules (30 TAC §331.6).
         #    Class V - Miscellaneous injection wells that are not Class I,
              II, III, or IV wells, or single family residential cesspools or
              septic system disposal wells. Wells used for in-situ
              combustion of fossil fuels and geothermal wells are under the
              jurisdiction of the RRC. Aquifer storage and recovery wells,
              subsidence control wells, salt water intrusion barrier wells;
              air conditioning return flow wells; drainage wells; some
              septic system wells; cesspools; dry wells used to inject
              nonhazardous wastes other than domestic sewage into the
              unsaturated zone; and sand backfill wells used to reclaim
              some mines are under the jurisdiction of TCEQ.

         For those facilities which handle hazardous waste, surface facilities are
         permitted separately by the TCEQ, under the authority of the Texas Solid
         Waste Disposal Act (Health and Safety Code, Chapter 361), and/or the
         federally delegated Resource Conservation and Recovery Act (RCRA)
         program. Strict application review procedures, and following monitoring
         and inspection programs by both the TCEQ and the Railroad Commission
         of Texas help prevent non-point source contamination of usable
         groundwater by salt water and non-hazardous wastes.

The Source Water Assessment and Protection Program
         The TCEQ Source Water Assessment and Protection (SWAP) program was
         created in 1996 by the Safe Drinking Water Act. SWAP combines source water
         assessment (SWA) and source water protection (SWP).




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               Source Water Assessments
               The Source Water Assessment (SWA) assesses a Public Water Supply
               system's susceptibility to 227 potential drinking water contaminants.
               Specific elements scrutinized include location, intrinsic characteristics,
               contaminant occurrence, point and nonpoint source pollution, and
               construction. These elements are compared with several hundred thousand
               database records to produce a technically defensible assessment product.
               The goal of the SWA component leads to local Source Water Protection
               (SWP) implementation.

               A source water assessment report has been provided to each of 6,000
               public water systems (PWS) and is intended to lead to the implementation
               of source water protection projects and BMP implementation. The source
               water assessments are used by the TCEQ SWAP program to drive the
               prioritization and implementation of Source Water Protection (SWP)
               activities, and the recommended best management practices (BMPs)
               aimed at minimizing or eliminating the affects of NPS contaminants.

               Source Water Protection
               Source Water Protection (SWP) is a voluntary, pollution prevention
               program implemented at the local level. All public water supply systems
               are eligible to participate in the program. The TCEQ provides technical
               assistance and guidance to local Public Water Supply systems that
               implement recommended BMPs. The TCEQ coordinates BMP
               recommendations or implementation with other agencies/organizations
               with expertise and/or jurisdiction. These BMPs include signs to increase
               public awareness, educational programs, site-specific protection plans, and
               local ordinances. The TCEQ recommends communities participating in
               the program voluntarily implement BMPs based on results of potential
               contaminant source inventories. Most SWP participants have implemented
               programs by working cooperatively with community members and
               through public education programs. Costs associated with implementing a
               SWP program are much lower than cleaning up a contaminated water
               source. Implementation costs are eligible for funding through the Texas
               Water Development Board’s Drinking Water State Revolving Fund loan
               program.

               For over fifteen years, TCEQ has used funds from the NPS Program to
               fund source water protection activities. Additionally, information
               developed for the NPS Program serves as valuable information and data
               about land-based contamination sources which provide valuable input into
               the source water assessment process. An example of this coordination is
               the Regional Aquifer Protection Programs (i.e., Edwards Aquifer) which
               has provided a wealth of data for TCEQ’s assessment and protection
               activities.

               The hallmark of Source Water Protection is to identify a PWS’s water
               source, sensitive contributing areas, possible sources of contamination

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         (PSOCs), and recommend BMPs to eliminate or minimize the threat of
         contamination. These recommendations often advocate the involvement of
         other agencies/organizations having relevant expertise and/or jurisdiction
         to provide increased public awareness, educational programs, site-specific
         protection plans (i.e. TMDL-IPs, WPPs), and local ordinances.

         Most SWP participants have implemented their programs by working
         cooperatively with community members and providing public education.
         The costs for implementing a SWP program are minimal and dramatically
         less than remediating contaminated drinking water.

Aquifer Protection
         In addition to programs already identified in this document, multiple
         agencies have responsibilities related to protecting the groundwater in the
         state from impacts from NPS pollution. Groundwater is water that occurs
         beneath the land surface in porous or fractured rock and sediments.
         Groundwater is a major source of the water used by Texans for domestic,
         municipal, industrial, and agricultural purposes.

         Vulnerability of an aquifer to contamination has two components: the
         environmental pathway that a contaminant would take to reach the
         groundwater, and the source and type of contaminants that result from
         activities conducted above the aquifer. Aquifer vulnerability is related to
         the physical, hydrological and biological characteristics of the soil, the
         unsaturated (non-water producing) upper portion of the aquifer and the
         water-bearing portion. Characteristics such as permeability and processes
         such as natural attenuation affect the movement and alteration of
         contaminants. These characteristics vary greatly among aquifers in Texas,
         such that aquifers have different vulnerabilities to contamination.
         Different parts of the same aquifer may have different vulnerabilities. The
         potential for impact on an aquifer is dependent on what activities are
         occurring above an aquifer or in its recharge zone.

         Groundwater contamination occurs principally in heavily populated areas
         of the state, such as Houston, Dallas, Fort Worth, San Antonio, and El
         Paso. Petroleum storage tank facilities are the largest category of
         contamination sources, but other regulated surface activities have resulted
         in contamination as well. The following is a discussion of some of the
         programs in place to protect the aquifers of the state.

The Texas Groundwater Protection Committee
         The Texas Groundwater Protection Committee (TGPC) is an interagency
         committee that was created by the Texas Legislature in 1989 to bridge the
         gap between state groundwater programs and optimize groundwater
         quality protection by improving coordination among agencies involved in
         groundwater protection activities. The TCEQ is designated as the lead


136                                            TCEQ/TSSWCB joint publication SFR-68/04
               agency for the committee and provides administrative support for its
               activities.

               The TCEQ partners with the Railroad Commission of Texas (RRC), Texas
               Department of State Health Services (DSHS), Texas Department of
               Agriculture (TDA), TSSWCB, Texas Alliance of Groundwater Districts
               (TAGD), Texas Agricultural Experiment Station (TAES), Bureau of
               Economic Geology (BEG), and the Texas Department of Licensing and
               Regulation (TDLR). The committee works to effectively manage and
               protect Texas groundwater. The TGPC works on special issues through
               subcommittees composed of committee members and the general public.

               The Nonpoint Source Subcommittee is an important mechanism for the
               TGPC to implement and evaluate NPS activities. Recognizing the dangers
               to human health and groundwater quality that abandoned water wells pose,
               for example, the TGPC initiated efforts to develop educational materials to
               promote low-cost, landowner-initiated closure (capping or plugging) of
               abandoned water wells through the Abandoned Water Well Closure Task
               Force, a sub-group of the Non-Point Source Subcommittee.

               The Agricultural Chemicals Subcommittee is another group within TGPC
               that is concerned with NPS impacts resulting from the legal use of
               chemicals to control insect and animal pests and unwanted vegetation. The
               Agchem Subcommittee has produced the Texas State Management Plan
               for Prevention of Pesticide Contamination of Groundwater, (TCEQ, 2001,
               SFR-070/01), which describes the general policies and regulatory
               approaches the State will use in order to protect groundwater resources
               from risk of contamination by pesticides. The document describes a
               generic coordinating mechanism among all responsible and participating
               agencies during the implementation of the plan, and provides for specific
               responses when they are deemed necessary.

Underground Storage Tank Installer Licensing Program
               Any entity who engages in the business of underground storage tank
               installation, repair, or removal in Texas, must be registered with the
               TCEQ as an Underground Storage Tank (UST) contractor. Individuals
               who supervise the installation, repair, or removal of an underground
               storage tank must be licensed by the TCEQ as a Type "A" UST installer
               on-site supervisor, and any individual who supervises the permanent
               removal of a UST system must be licensed as a Type "B" UST remover
               on-site supervisor.

Texas Department of Licensing and Regulation
               The Texas Department of Licensing and Regulation (TDLR) is charged to
               protect ground water quality through the licensing of well drillers and
               assuring well construction standards are enforced. A Water Well Driller is
               defined as any individual who drills, bores, cores, or constructs a water

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      well. A driller may include an owner, operator, contractor, or drilling
      supervisor. The program has a mandatory apprenticeship which requires
      all applicants to have at least two years of drilling experience before
      taking the licensing exam. TDLR has the power to suspend or revoke
      licenses and set administrative penalties for incompetence or violations of
      any section of Texas Occupation Code Chapters 1901 and 1902 or any
      rule.

      The Texas Legislature expanded the Water Well Driller functions to
      include pump installers that repair wells after they have been drilled.
      Pump Installers install and repair well pumps and equipment, locate and
      survey abandoned wells, and repair existing wells. Regulation of this
      function provides a mechanism to ensure that surface casing is completed
      on wells that were drilled before the rules on surface casing existed to
      prevent contamination of drinking water sources by improperly sealed
      wells.

      Numerous state and local programs have identified abandoned water wells
      as having a significant, or potentially significant, negative impact on
      groundwater quality in the state. Abandoned water wells exist in every
      county and impact all of the state's aquifers. It is conservatively estimated
      that 150,000 of the wells drilled since 1965 are abandoned or deteriorated.
      Abandoned water wells not only serve as conduits or channels for
      contamination to reach groundwater, but large diameter wells can also be
      a hazard to human and animal life. In addition, uncapped, non-cemented,
      deteriorated or uncased wells completed in more than one water-bearing
      zone may allow poorer-quality water from one zone to co-mingle and
      impact the other(s). Abandoned municipal, industrial, irrigation wells and
      abandoned rig-supply, domestic or livestock wells, and unplugged
      test-holes also pose threats to groundwater quality.

      State law requires landowners, who possess an abandoned or deteriorated
      well, to have the well plugged or capped under TDLR standards. The
      landowner is liable for any water contamination or injury due to such
      wells. The Abandoned Well Notification and Compliance Program,
      administered by the TDLR, compiles, identifies, and processes abandoned
      water well notification and enforcement cases. The TDLR can assess
      administrative and civil penalties against persons who do not comply with
      the provisions. Some groundwater conservation districts are implementing
      well-capping and plugging programs of their own.

      Additionally, the Water Well Driller/Pump Installer Program provides
      advisories to water well drillers for areas with contaminant plumes or
      undesirable water quality. These advisories help water well drillers avoid
      impacting usable groundwater by unknowingly drilling through
      contaminated zones in the areas specified. Drillers are advised to case off
      and pressure grout those zones to prevent contaminant migration - another
      form of NPS pollution.


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Edwards Aquifer Protection Program
               The State of Texas contains only one designated sole-source aquifer, the
               Edwards Aquifer found in the central and south central portion of the
               state. The Edwards Aquifer is an arcuate band of limestone and associated
               formations that stretch from Bell County through Williamson, Travis,
               Hays, Comal, Bexar, Medina and Uvalde counties, finally terminating in
               Kinney County. All of these counties, except Bell, are subject to TCEQ
               rules promulgated to protect the quality of groundwater within the aquifer.

               The rules are the basis of the Edwards Aquifer Protection Program,
               administered by TCEQ's Field Operations Division staff in the Austin and
               San Antonio Regional Offices. The program requires anyone who plans to
               build on the recharge, transition, or contributing zones of the Edwards
               Aquifer, to first have an application, including construction plans,
               approved by the TCEQ. Staff in the regional offices review these plans.
               After a plan is approved, the site is monitored for compliance.

               The rules are intended to mitigate NPS and point source impacts from
               regulated development over the recharge zone, transition zone and
               contributing zone of the Edwards aquifer, and, depending on location and
               type of development, may require any or all of the following:

               #     A water pollution abatement plan (WPAP) for any regulated
                     activity proposed on the Edwards Aquifer recharge zone.
                     This includes any construction-related activity on the
                     recharge zone, such as, but not limited to, the construction of
                     buildings, utility stations, roads, highways, railroads;
                     clearing, excavation, or any other activities that alter or
                     disturb the topographic, geologic, or existing recharge
                     characteristics of a site; or any other activities which may
                     pose a potential for contaminating the Edwards Aquifer and
                     hydrologically connected surface streams.
               #     An organized sewage collection system (SCS) plan for any
                     public or private sewerage system for the collection and
                     conveyance of sewage to a treatment and disposal system
                     that is regulated pursuant to rules of the commission and
                     provisions of Chapter 26 of the Texas Water Code. A system
                     includes lift stations, force mains, gravity lines, and all
                     appurtenances necessary for conveying wastewater from a
                     generating facility to a treatment plant.
               #     An underground storage tank (UST) facility plan for the
                     installation or replacement of underground storage tanks or
                     piping on either the recharge or transition zones of the
                     Edwards Aquifer. In particular, storage tank (aboveground or
                     underground) facilities that will store 500 gallons or more of
                     static hydrocarbons or hazardous substances are regulated.


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         #    An aboveground storage tank (AST) facility plan for the
              installation of permanent aboveground storage tanks at a
              facility that will have a total capacity of 500 gallons or more
              on either the recharge or transition zones of the Edwards
              Aquifer. In particular, ASTs that will store static
              hydrocarbons or hazardous substances are regulated.

Environmental Permitting Programs
         The TCEQ, RRC, DSHS, and other regulatory agencies are responsible for
         permitting various activities ranging from application of pesticides to
         wastewater discharge. All of these permitting programs contain some form
         of NPS pollution prevention requirements, whether in the form of BMPs
         or through monitoring.

         TCEQ's Wastewater Permitting program, for example, routinely issues "no
         discharge" permits for facilities disposing of treated wastewater effluent
         via irrigation or evaporation. The effluent disposal sites must meet certain
         criteria to insure that groundwater and surface water are not impacted by
         percolation of contaminants or runoff from application areas. Permits
         require facilities to monitor groundwater quality, sample soils for nutrient
         and salt loading, and provide information on the uptake of contaminants
         by cover crops in order to prevent contamination. Similar requirements are
         made for sites handling or disposing of post-treatment wastewater sludge,
         wastes from permitted confined animal feeding operations and wastes
         from drinking water treatment facilities.

         TCEQ permits for industrial and hazardous waste generators and
         management units, and municipal solid waste disposal facilities contain
         provisions designed to protect groundwater and surface water from the
         effects of small levels of contaminants that may escape from a facility.
         This provisions include pond linings, numerous monitoring points, filter
         strip areas, leak detection systems for production piping and other
         measures.

         The RRC establishes oil and gas well construction and plugging standards,
         and requires a letter from TCEQ that establishes the location of the base of
         usable quality groundwater. Wells must be constructed and plugged in
         such a manner that the usable quality groundwater is protected from
         contaminants that may migrate during the life of the well. In addition,
         RRC authorizations by rule and permits for storage, management and
         disposal of oil and gas waste, include requirements for pit liners, sampling
         and monitoring, and runoff control.

         Texas Department of State Health Services (DSHS), Bureau of Radiation
         Control (BRC) regulates radioactive materials, including uranium
         recovery and radioactive waste disposal. The BRC monitors groundwater
         for radionuclides on a routine basis at several facilities. Additionally, BRC


140                                             TCEQ/TSSWCB joint publication SFR-68/04
               regulates receipt, possession, storage, use and treatment of NORM
               (Naturally Occurring Radioactive Materials).

The Railroad Commission of Texas—Oil and Gas Well
Plugging Program
               The RRC has long been active in regulating the exploration, development
               and production of oil and gas in Texas, which includes protecting the
               environment and maintaining public safety. The RRC began regulating oil
               and gas exploration and production operations in 1919 and over time has
               adopted increasingly stringent plugging standards and procedures. Statutes
               to prevent pollution from unplugged wells have also been modified over
               the years to increase RRC authority in this area.

               The RRC has utilized the Oil Field Clean Up (OFCU) Fund to plug over
               15,000 wells, however, thousands of additional abandoned wells remain.
               To ensure effective and efficient use of the OFCU Fund, the RRC has
               implemented a well plugging priority system to plug the wells that pose
               the greatest risk to the environment. The OFCU Fund is supported entirely
               by fees, penalties, and other payments collected from the oil and gas
               industry. The RRC has also been working with the TCEQ to utilize Clean
               Water Act CWA§319(h) grant funding to reduce chloride and total
               dissolved solids levels in several watersheds.

Wetlands Protection
               Wetlands are generally considered as a transition zone between land and
               water where the soil is occasionally or permanently saturated with water.
               Wetlands are populated with plants that are specially adapted to grow in
               standing water or saturated soils. There are many different types of
               wetlands, including marshes, bogs, swamps, mangroves, prairie playas,
               and bottomland hardwood forests. Wetlands may not always appear to be
               wet. Many wetlands dry out for extended periods of time. Other wetlands
               may appear dry on the surface but are saturated with water beneath the
               surface.

               Saltwater wetlands fringe estuaries; freshwater wetlands border streams,
               rivers, and reservoirs or occur in isolation. Generally, wetlands improve
               water quality, provide critical habitat for a wide variety of fish and
               wildlife, provide storage for flood waters, and stabilize shorelines.
               Wetlands filter nutrient and sediment from water before it enters adjacent
               water bodies and underlying groundwater aquifers.

               Wetlands can be physically destroyed by filling or dewatering. Wetlands
               can also be damaged by the same pollutants that degrade other water
               bodies, such as nutrients, toxic substances, and oxygen demanding wastes.
               Below is a discussion of some of the programs in place to protect this
               precious resource.


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The Wetlands Reserve Program
         The Natural Resource Conservation Service (NRCS) administers the
         Wetlands Reserve Program (WRP). The Wetlands Reserve Program is a
         voluntary program that provides technical and financial assistance to
         eligible landowners to address wetland, wildlife habitat, soil, water, and
         related natural resource concerns on private land in an environmentally
         beneficial and cost effective manner. The program provides an
         opportunity for landowners to receive financial incentives to enhance
         wetlands in exchange for retiring marginal land from agriculture.

The Texas Wetlands Conservation Plan
         Ninety-seven percent of Texas' land is privately owned and managed.
         Management decisions on these lands are made by private landholders.
         Economics often dictate what these management strategies will be. The
         Texas Wetlands Conservation Plan focuses on providing private
         landowners with information to assist them in making informed,
         economically beneficial management decisions, which will protect
         wetland functions and maximize the benefits that wetlands provide.
         Development of the Wetlands Conservation Plan was coordinated by the
         Texas Parks and Wildlife Department (TPWD) and is intended as a guide
         for wetlands conservation efforts throughout the state.

         The Texas Wetlands Conservation Plan, initiated in 1988 and last updated
         in 1997, focuses on non-regulatory, voluntary approaches to conserving
         Texas' wetlands. It has three major goals: to enhance the landowner's
         ability to use existing incentive programs and other land use options
         through outreach and technical assistance; to develop and encourage land
         management options that provide an economic incentive for conserving
         existing or restoring former wetlands; and to coordinate regional wetlands
         conservation efforts.

         Wetland issues addressed in the Plan fall into five general categories:
         education; economic incentives; statewide and regional conservation;
         assessment and evaluation; and coordination and funding. The Plan, in
         addition to providing general information and goals, highlights many
         specific recommendations to enhance wetlands conservation in Texas. To
         date, a shortage of funding has slowed implementation of
         recommendations identified in the Plan.

Wetlands Planning Efforts in Texas
         Wetlands planning in Texas has been influenced by opportunities and
         requirements initiated at the national, state, and local levels. Many public
         and private sector organizations and individuals in Texas are involved in
         wetlands conservation and regulation. Each organization has a unique
         focus, which may include regulation, technical assistance to landowners,
         funding or land restoration sites. Alone, individual entities are often


142                                             TCEQ/TSSWCB joint publication SFR-68/04
               ill-equipped to meet wetlands conservation opportunities and challenges.
               However, together they form a web of conservation opportunities. Several
               planning efforts are working at the state level to address different aspects
               of wetlands management and planning.

               Seagrass Conservation Plan
               The Seagrass Conservation Plan was developed to address seagrass
               problems in Texas over the next ten years. The TCEQ, GLO, and TPWD
               endorsed conservation goals for the Seagrass Plan, which include defining
               seagrass research needs, addressing management concerns, and expanding
               environmental awareness in citizens through education.

               Conservation Plan for State-Owned Coastal Wetlands
               The State Wetlands Conservation Plan for State-Owned Coastal Wetlands
               provides protection through specific actions for state-owned coastal
               wetlands. The TPWD and the GLO, with assistance from other agencies,
               are jointly developing this legislatively required plan. Eighteen specific
               items/actions must be included in the plan. Some of these actions include a
               goal of no overall net loss of state-owned wetlands, wetland mitigation
               policies, a requirement for freshwater inflows to estuaries, a navigational
               dredging and disposal plan, education and research regarding boating in
               wetlands, the reduction of nonpoint source pollution, improved
               coordination among federal and state agencies, and a plan to acquire
               coastal wetlands.

               Local Government Wetlands Plan
               The Local Government Wetlands Plan is a demonstration project that will
               incorporate the tools contained in Texas Coastal Wetlands: A Handbook
               for Local Governments. The GLO will form a partnership with a local
               government to develop a local wetlands plan.

Wetlands Assistance for Landowners
               In 1995, a "Wetlands Assistance Guide for Landowners" was published
               which describes the programs, regulations and conservation options that
               affect landowners in Texas. The Landowner's Guide summarizes existing
               state, federal and private programs which provide financial and technical
               assistance for wetlands protection. Other topics discussed include an
               assessment of landowner options for wetlands protection, a summary of
               existing state and federal regulations affecting wetlands, a list of contacts,
               and a description of the roles of state and federal agencies which are
               involved in wetlands regulation and management.

Coastal Programs
               High freshwater inflows tend to frequently flush the estuaries of the upper
               coast. Lower coast estuaries have low freshwater inflows and high
               residence times for natural and man-made pollutant inputs. Pollutants

TCEQ/TSSWCB joint publication SFR-68/04                                                  143
      from both local and distant sources tend to accumulate in estuaries. Most
      pollutants that enter streams and rivers eventually migrate toward the
      coast. As rivers approach the coast, their mouths broaden and stream
      velocity decreases. The reduction in stream velocity and fluctuation of
      tides from the Gulf reduce flushing and entrap nutrients and pollutants at
      the head of estuarine waters. This natural trapping process establishes the
      basis for highly productive estuarine ecosystems, but also makes estuaries
      vulnerable to excessive pollutant loading. Thick clay soils, which persist
      throughout the coast except for areas directly adjacent to large rivers,
      prevent the exchange of surface and groundwater.

      Rural and agricultural lands comprise almost half of the total land use/land
      cover within the coastal management area. The upper Texas coast's heavy
      rainfall and thick clay soils support rice cultivation. As rainfall declines
      further south, dryland row crops of
      cotton and grain sorghum dominate
                                                 Estuaries are coastal waters where
      the agricultural scene. Extensive
                                                 inflowing stream or river water mixes
      irrigation systems in the Lower Rio        with, and measurably dilutes, sea water.
      Grande Valley support such diverse         In Texas, estuaries are the lower tidal
      crops as citrus, vegetables, sugar         portions of rivers and streams that
      cane, and aloe vera.                       directly enter the Gulf of Mexico or its
                                                   bay systems. Estuaries serve as
                                                   important nurseries for many
      The Texas coast houses half the              commercial fish and shellfish
      nation's petrochemical industry and          populations, including shrimp, oysters,
      more than a quarter of its refining          crabs, and scallops.
      capacity. There are four major
      urban and industrial centers on the
      Texas Coast: Beaumont-Port Arthur-Orange; Houston-Galveston; Corpus
      Christi; and the Lower Rio Grande Valley. In addition to dense urban and
      suburban development, significant oil refining and associated
      petrochemical industry infrastructure exist in the first three areas. The Rio
      Grande Valley is primarily a year-round agricultural center which is
      experiencing explosive population growth due to its proximity to Mexico
      and an improved economy in response to the North American Free Trade
      Agreement.

      The steady growth of industry, as well as burgeoning marine commerce,
      agriculture, commercial and recreational fishing, and a thriving tourist
      trade, has intensified competition for coastal resources. Continued
      economic and population growth are projected for the Texas Coast, and as
      population and development increase, so do waste generation,
      environmental degradation, and the risks of damage to natural systems.

      The coastal areas of Texas have to deal with the same nonpoint source
      pollution issues as the rest of the state, in addition to beach erosion,
      salinity, and protection of important coastal estuarine and wetland
      habitats. The following programs are specific to nonpoint source
      management along the Texas Coast.


144                                             TCEQ/TSSWCB joint publication SFR-68/04
The Texas Coastal Management Program/Coastal
Coordination Council
               The Texas Coastal Management Program (CMP) was created to
               coordinate state, local, and federal programs for the management of Texas
               coastal resources. The program brings in federal Coastal Zone
               Management Act (CZMA) funds to Texas state and local entities to
               implement projects and program activities for a wide variety of purposes.
               The Coastal Coordination Council (CCC) administers the CMP and is
               chaired by the Commissioner of the GLO. It is comprised of the chair or
               appointed representatives from the TPWD, the TCEQ, the TWDB,
               TxDOT, a member of the State Soil and Water Conservation Board, a
               member of the RRC, the director of the Texas A&M University Sea Grant
               Program and four gubernatorial appointees. These members are selected to
               provide fair representation for all aspects concerning coastal issues.

               The Council is charged with adopting uniform goals and policies to guide
               decision-making by all entities regulating or managing natural resource
               use within the Texas coastal area. The Council reviews significant actions
               taken or authorized by state agencies and subdivisions that may adversely
               affect coastal natural resources to determine their consistency with the
               CMP goals and policies. In addition, the Council oversees the CMP
               Grants Program and the Small Business and Individual Permitting
               Assistance Program.

               The Coastal Zone Act Reauthorization Amendments (CZARA), §6217,
               requires each state with an approved coastal zone management program to
               develop a federally approvable program to control coastal nonpoint source
               pollution. The Texas CCC appointed a Coastal Nonpoint Source Pollution
               Control Program workgroup to develop this document.

               On April 7, 2003, the National Oceanic and Atmospheric Administration
               (NOAA) recommended conditional approval of the Texas Coastal
               Nonpoint Source Pollution Control Program. The document discusses the
               coastal nonpoint source management area; an overview of program
               implementation and coordination; presentation of specific nonpoint source
               categories, the §6217 management measures, and the state rules and
               programs which address pollution sources and meet the federal
               requirements; information on additional management measures, technical
               assistance, and public participation; and program monitoring and
               evaluation.

               Coastal Nonpoint Source Program
               The Coastal NPS Program for Texas has been under development since
               1997. To facilitate the development of the NPS Program, the Coastal
               Coordination Council established a subcommittee comprised of staff from
               the General Land Office, Texas Commission on Environmental Quality,


TCEQ/TSSWCB joint publication SFR-68/04                                              145
               Texas Railroad Commission, Texas Department of Transportation, Texas
               Parks and Wildlife Department, Texas State Soil and Water Conservation
               Board, and a public member from the Council. This subcommittee has
               addressed comments submitted by the National Oceanic and Atmospheric
               Administration (NOAA) and the Environmental Protection Agency (EPA)
               regarding Texas' Coastal NPS Program, reviewed and recommended
               proposed NPS pollution control projects, and researched possible options
               to enhance the program.

               In December 1998, Texas submitted its Coastal NPS Program to NOAA
               and EPA. After two and a half years of discussion between Texas and the
               federal agencies, NOAA and EPA published in the Federal Register, in
               late September 2001, their intent to approve the Texas Coastal NPS
               Program with certain conditions. NOAA and EPA identified six areas that
               Texas must strengthen or correct prior to receiving full approval of the
               Coastal NPS Program. (Table 6.1)

               The second notice to conditionally approve Texas' Coastal NPS Program
               was posted in the Federal Register on April 7, 2003. The Final Conditional
               Approval Letter was received on July 9, 2003. Texas was given five years
               to meet the remaining conditions.

               Texas continues to seek full approval by addressing the remaining
               conditions in the Final Conditional Approval Letter. The Texas Coastal
               Coordinating Council is preparing responses to EPA and NOAA to
               address these conditions and will continue to negotiate with EPA and
               NOAA for full approval. Texas anticipates full approval of the Texas
               Coastal NPS Management Program by July 9, 2008, and full
               implementation of this program by July 9, 2018.


 Table 6.1. Texas Coastal NPS Management Program. Remaining Conditions and
            Anticipated Year of Condition Resolution
                                                       Projected Approval Year
          EPA/NOAA Condition
                                                     2005       2006      2007      2008

New Development and Existing Development                          X
Site Development                                                  X
Watershed Protection                                              X
New and Operating Onsite Disposal Systems                                            X
Roads, Highways, and Bridges                                                         X
Hydromodification                                                 X




146                                                 TCEQ/TSSWCB joint publication SFR-68/04
The National Estuary Program
               The National Estuary Program (NEP) was established under §320 of the
               Clean Water Act to "identify nationally significant estuaries which are
               threatened by pollution, development, or overuse; promote comprehensive
               planning for, and conservation and management plans for estuaries of
               national significance; and enhance the coordination of estuarine research."
               There are two active estuary programs in Texas. The first was established
               for the Galveston Bay system and the second was established for the bays
               and estuaries along the Coastal Bend of South Texas. Each of these
               estuary programs developed a Comprehensive Conservation and
               Management Plan (CCMP) which recommends priority actions and
               implementation schedules to address impacts observed in the estuary. The
               CCMP development is a concensus-based process involving a partnership
               across federal, state, and local levels. With the completion of the CCMPs,
               each National Estuary Program formed a nonprofit, nonregulatory
               management structure to implement its plan.

               Galveston Bay Estuary Program
               The Galveston Bay Estuary Program (GBEP) is a continuation of the
               National Estuary Program (NEP) established for Galveston Bay in 1989.
               The Galveston Bay Estuary Program is a partnership of bay stakeholders
               currently working to implement the Galveston Bay Plan. The plan
               contains action plans dealing with habitat and species protection,
               freshwater inflows, spills and dumping, exotic species, point sources of
               pollution, and nonpoint sources of pollution to protect and restore the
               health of the estuary, while supporting economic and recreational
               activities. Eighty-two initiatives are outlined under these nine action plans.
               The GBEP takes a leading role in facilitating and coordinating the
               implementation of these initiatives.

               Nonpoint source pollution is the number one identified water quality
               problem in Galveston Bay. Implementation of the Galveston Bay Plan
               includes the following actions to address this problem: developing and
               implementing a Galveston Bay public education program aimed at
               reducing pollution from residential areas; compiling a Galveston Bay
               BMP Performance Document to inventory nonpoint source control
               techniques which have been evaluated; identifying and correcting priority
               watershed pollutant problems by maintaining and publishing an inventory
               of nonpoint source concerns in the bay watershed; adopting regional
               construction standards for nonpoint source reduction and implementing
               toxics and nutrient control practices; encouraging sewage pumpout,
               storage, and provisions for treatment; and implementing storm water
               programs for local municipalities.

               To date, the GBEP has addressed nonpoint source pollution by convening
               a forum for information sharing among Galveston Bay stakeholders
               involved in nonpoint source pollution prevention/control activities,


TCEQ/TSSWCB joint publication SFR-68/04                                                 147
         providing technical assistance to local and county governments, and
         educating and reaching out to children and adults. The GBEP partners
         with the Houston-Galveston Area Council, the Galveston County Health
         District, the Galveston Bay Foundation, and the Texas A&M Sea Grant
         Program to provide technical assistance on stormwater management to
         local governments; provide technical assistance to small businesses on
         implementation of waste minimization strategies and general best
         management practices; develop, maintain, and publish an inventory of
         nonpoint source concerns in the bay watershed; implement a baywide
         public education program aimed at reduction of pollution from residential
         areas through illustration, presentations, and workshops; and to conduct
         voluntary inspections and provide information assistance to reduce
         bacterial pollution caused by malfunctioning septic systems.

         Coastal Bend Bays & Estuaries Program
         The TCEQ and EPA helped establish the Coastal Bend Bays & Estuaries
         Program (CBBEP) to develop and implement a plan to protect and restore
         the bays and estuaries of the Texas Coastal Bend. The CBBEP has
         developed a Comprehensive Conservation and Management Plan to deal
         with a wide array of problems ranging from public health and education,
         freshwater flow, and loss of natural habitats. The CBBEP has
         implemented the following actions to protect bays and estuaries from
         nonpoint source pollution:

         # A regional handbook of urban nonpoint source pollution BMPs
           for voluntary use by local governments seeking to implement
           nonpoint source pollution programs.
         # Compliance assistance to small business and industries in the
           region which are subject to NPDES permit program or have
           nonpoint source controls needs.
         # Assistance to local governments to implement on-site sewage
           facility programs.
         # Coordinate and implement agricultural water quality
            management programs necessary to meet water quality standards.


Coastal Habitat Restoration
         Texas Parks and Wildlife Department has an active program to restore
         wetlands along the Texas Coast. These marsh creation projects establish
         intertidal marsh with emergent plants along bay shorelines that are
         suffering from severe erosion. These created marshes buffer shorelines
         from erosion and remove both sediments flowing into the bays and
         sediments that have been re-suspended by storms. These wetlands also
         help remove nutrients from stormwater runoff. These newly created and
         restored marshes provide habitat for a wide variety of ecologically and
         economically important marine life. Typically these restoration projects
         involve multiple local, state, and federal partners. Citizens also assist by


148                                              TCEQ/TSSWCB joint publication SFR-68/04
               replanting the marshes. Including citizens increases awareness of the value
               of these marshes.

The BEACH Act
               In October 2000, the U.S. Congress passed the Beaches Environmental
               Assessment and Coastal Health Act of 2000 (BEACH Act) to protect the
               public health at our nation's beaches. The BEACH Act requires that states,
               in cooperation with the EPA, develop and implement a program to
               monitor coastal recreation waters adjacent to beaches that are used by the

               public, and to notify the public if water quality standards for pathogens
               and pathogen indicators are exceeded.

               The BEACH Act requires the state to identify all factors used to evaluate
               and rank beaches; identify coastal recreation waters in the state; identify
               bathing beaches adjacent to coastal recreational waters; develop a
               sampling, monitoring, and notification program; develop a method for
               issuing beach advisories and/or closings; and develop a method to notify
               the public. In July 2001, the Governor's office appointed the GLO as the
               lead state agency to implement the BEACH Act based upon the current
               Beach Watch Program.

               The Texas Beach Watch Program gives Texans baseline data on the health
               of gulf waters, making sure that beaches are safe for swimmers, surfers,
               sailors and boaters. The Beach Watch Program involves county and city
               governments, universities, and organizations representing beach goers.
               Contractors test specified sites for Enterococcus bacteria and issue public
               advisories if water samples exceed the criteria recommended by the EPA.

The Gulf of Mexico Community-Based Restoration Program
               The Gulf of Mexico Community-Based Restoration Program (GCRP)
               Partnership invites proposals for its citizen-driven habitat restoration
               projects. The partnership funds on-the-ground activities to restore marine,
               estuarine and riparian habitats. This grant program seeks to restore and
               protect the health and productivity of the Gulf of Mexico in ways
               consistent with the economic well being of the region. Projects must be
               within the designated priority area, the Lower Laguna Madre, Texas
               Coastal Bend and Bays, and Galveston Bay.

               The GCRP is a multi-year, regional partnership between the Gulf
               Ecological Management Sites (GEMS) Program and the NOAA
               Community-Based Restoration Program. The purpose of this partnership
               was designed to strengthen the conservation efforts of the GEMS Program
               by supporting on-the-ground habitat restoration benefitting living marine
               resources and fostering local stewardship of ecologically significant areas
               across the Gulf of Mexico.



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The Bilge Water Reclamation Program
         The GLO initiated the Bilge Water Reclamation Program as an innovative
         response to the large number of spills from commercial and recreational
         vessels along the Texas coast. Facilities operating under the program
         collect and process bilge water that is often contaminated by petroleum
         hydrocarbons from local commercial fishing vessels. The facilities provide
         vessels with an environmentally responsible way to dispose of bilge water.
         There is no charge to use the facility, and the used oil collected is recycled
         by a local company. The cooperative development of the Bilge Water
         Reclamation Program, by the GLO and its partners, has proven to have a
         positive impact on water quality along the Texas coast.

Coastal Texas 2020
         Coastal Texas 2020 is a long-term, statewide initiative to unite local, state,
         and federal efforts to promote the environmental and economic health of
         the Texas coast. One goal of Coastal Texas 2020 is to increase the state's
         share of federal funding to fight rapid coastal erosion. Coastal Texas 2020
         is designed to implement the vision of a comprehensive approach to
         coastal issues that mixes local, state, and federal funds with money from
         the private sector, while combining regulatory changes with market-based
         solutions.

The Adopt-A-Beach Program
         The Texas Adopt-A-Beach Program, sponsored by the GLO, is dedicated
         to preserving and protecting Texas beaches by raising public awareness;
         educating citizens about the source of debris; and generating public
         support for state, national, and international action to clean up coastal
         waters. Since the first Adopt-A-Beach Cleanup in 1986, more than
         300,000 volunteers have come to the Texas coast to haul off tons of trash.
         At each cleanup site, volunteers record data about the trash to learn more
         about the cause of marine debris. This data has been instrumental in the
         passage of international treaties and laws aimed at reducing the amount of
         offshore dumping. The program's success is due to the generous efforts of
         dedicated volunteer county coordinators, coastal community leaders,
         sponsors, and citizens. Strong support from the private sector helps carry
         the anti-litter message to Texans all across the state.

Border Programs
         Urban populations are growing rapidly in the border region, exceeding
         growth throughout the rest of the state and much of the nation. The
         McAllen-Edinburg-Mission area is the fourth-fastest growing
         metropolitan statistical area in the U.S. On the Mexican side of the border,
         population is rising even more quickly, expanding by almost 50 percent in
         the past ten years. With this boom has come both an increased demand for



150                                             TCEQ/TSSWCB joint publication SFR-68/04
               water supplies and a strain on communities' water, wastewater, and waste
               management infrastructure.

               The region's economy depends on agriculture, ranching, oil and gas
               production, trade and commerce, industry, and tourism. Agriculture is
               particularly important in the Lower Rio Grande Valley, where the lack of
               an adequate supply of high quality water is threatening the livelihood of
               farmers. Per capita income is lower in the border region than other parts of
               Texas as a whole. Lower income results in fewer tax dollars for local
               governments to meet existing needs, to keep up with rapid growth, or to
               plan for the future. Communities are challenged to do more with less.
               One of the greatest threats to water quality is the lack of sufficient water
               and wastewater infrastructure to keep pace with border growth. A lack of
               adequate service increases the likelihood that raw sewage or poorly treated
               water can enter the river, elevating bacteria levels and the risk of
               contracting water-borne diseases like hepatitis A. Raw sewage,
               wastewater, and agricultural activity can also increase levels of nutrients
               in the river. Elevated nutrient concentrations encourage algal growth and
               decrease dissolved oxygen. Low dissolved oxygen endangers aquatic
               plants and animals.

               In addition to the need for adequate infrastructure, water quantity
               problems also affect water quality in the Rio Grande. The less water
               available, the more concentrated pollutants can become in the river, and
               the less suitable the water becomes for municipal and agricultural use.

               Groundwater throughout the border region is most threatened by
               increasingly high salt content. Overuse of a groundwater resource depletes
               water and increases movement of brackish water that requires more
               extensive treatment to meet drinking water standards. Other causes of high
               salinity include leaching of salts left in the soil by previous irrigation and
               seepage of oil-field brines into the ground. Pesticide residues can also
               travel into an aquifer with irrigation runoff or seepage into the soil.

               Border growth also impedes communities' ability to manage the disposal
               of solid and hazardous wastes. Limited disposal options leads to an
               increase in illegal dumping. Improper disposal of used tires is a major
               concern in the region. Hazardous waste transportation is also a concern in
               border port-of entry cities , where chemical spills pose a potential threat to
               public health and water supplies. The following is a discussion of some of
               the programs in place to deal with the issue of water quality in the border
               region.

The TCEQ Border Pollution Prevention Initiative
               The Mexican government's in-bound maquiladora ("maquila") or twin
               plant program allows foreign companies to establish manufacturing and
               production facilities in Mexico and ship raw materials and components to
               those facilities under no or low tariffs. The Maquilas have affected Texas'

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         border environment in a number of ways. One of the most significant
         environmental impacts is the strain placed on the ability to manage
         additional wastewater, solid waste, and hazardous waste disposal needs.
         Since its inception in 1994, the TCEQ Border Pollution Prevention
         Initiative has worked with maquilas, local, state, and federal governments,
         and universities to reduce pollution along the border. The program has
         assisted Mexican federal and border-state governments, universities, and
         other institutions in developing pollution prevention and waste
         minimization capability. Pollution prevention capability has been
         furthered by facility site assistance visits, training events, partnerships
         with universities in Mexico, and border roundtables.

The Border Environment Infrastructure Fund
         The North American Development Bank established the Border
         Environment Infrastructure Fund (BEIF) in an effort to make projects
         affordable, especially for the smallest and poorest communities. The
         purpose of the BEIF is to make environmental infrastructure projects
         affordable for communities throughout the U. S.-Mexico border region by
         combining grant funds with loans or guaranties for projects that would
         otherwise be financially unfeasible. A primary objective of the BEIF
         assists communities in transition from highly subsidized projects to
         self-sustaining projects supported locally by user fees and other revenue.
         As a result, to access BEIF funds, project sponsors must demonstrate local
         "buy in" with the commitment of current revenues, capital reserves, and/or
         debt at the municipal or utility level.

The International Boundary and Water Commission
         The mission of the International Boundary and Water Commission
         (IBWC) is to apply the rights and obligations which the Governments of
         the United States and Mexico assume under the numerous boundary and
         water treaties and related agreements. The United States and Mexican
         sections of the IBWC, USIBWC and MxIBWC, have recently been taking
         a proactive approach in support of its obligations. For example, the
         USIBWC holds public meetings along the border to provide information
         to the local communities on issues such as water quality, ongoing projects,
         and illegal dumping, and solicits the input of the citizens in addressing
         these issues. Several of the main goals of the IBWC as they relate to
         nonpoint source pollution include finding solutions to border sanitation,
         and working to address other border water quality problems. In order to
         obtain these goals, the USIBWC has implemented the following
         objectives:

         # promote successful resolution of a broad range of
           trans-boundary environmental issues
         # investigate and report on the most feasible measures for
           solving border sanitation problems


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               # conduct various planning and environmental studies for
                 groundwater and border sanitation (water quality) programs

               One of the key projects for dealing with border sanitation is the
               construction of an international wastewater treatment plant in the City of
               Nuevo Laredo. The Nuevo Laredo International Wastewater Treatment
               Plant (NLIWTP) provides a high level of treatment for millions of gallons
               of sewage each day originating from the City of Nuevo Laredo. The
               NLIWTP directly impacts the water quality of the Rio Grande and reduces
               the health risk to residents on both sides of the river. As the project
               continues, the USIBWC is working with the MxIBWC and Nuevo
               Laredo's Comision Municipal de Agua Potable y Alcantarillado
               (COMAPA) on long-term planning for further improvements to the water
               and wastewater infrastructure in Nuevo Laredo with funds provided by the
               EPA.

               The USIBWC also conducts water quality monitoring in support of its
               mission to address border sanitation problems along the border. USIBWC
               field offices located throughout the border provide local support for this
               mission. In 1998, because of the international nature of the Rio Grande,
               the State of Texas contracted with the USIBWC to implement the Clean
               Rivers Program (CRP) for the Rio Grande in its 1,254-mile international
               boundary section. This agreement has led to a more coordinated effort
               between federal, state, and local agencies in addressing the water quality
               of the Rio Grande.

The Economically Distressed Areas Program
               The Economically Distressed Areas Program (EDAP), administered by the
               Texas Water Development Board, provides financial assistance in the
               form of a grant, a loan, or a combination grant/loan to bring water and
               wastewater services to economically distressed areas, where present water
               and wastewater facilities are inadequate to meet the needs of residents. To
               be eligible for the program, projects must be located in economically
               distressed areas within affected counties and/or be located next to an
               international border. The EDAP will fund construction, acquisition, or
               improvements to water supply and wastewater collection and treatment
               works, including all necessary engineering work. The program also
               includes measures to prevent future substandard development.

The Colonias Initiatives Program
               The Colonias Initiatives Program is administered by the Texas Secretary
               of State's Office. One of the greatest concerns regarding the colonias is the
               lack of wastewater infrastructure, potable water, and the potentially
               serious consequences for public health and its effect on quality of life. The
               Colonia Incentives Program was initiated to advance efforts to get colonia
               residents' homes connected to water and wastewater services in a more
               expeditious manner.

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Border Recycles Day
         Border Recycles Day involves a variety of environmental events in
         communities and schools as part of the statewide Texas Recycles Day
         (and National America Recycles Day) on November 15th. The first Border
         Recycles Day was celebrated in November 1998. Events initially were
         staged in Texas border cities by the TCEQ, but local communities have
         since taken ownership and created their own initiatives. Now Border
         Recycles Day has been formally incorporated in the State-to-State
         Strategic Environmental Plans that the TCEQ has developed with
         counterpart agencies in the neighboring states of Chihuahua, New Mexico,
         Coahuila, Nuevo Leon, and Tamaulipas. As a result, some Texas border
         communities host sister-city events with their Mexican counterparts.

Friends of the Rio Grande
         One of the goals of the USIBWC Clean Rivers Program (CRP) is to
         promote environmental awareness through public education and outreach.
         TCEQ and the USIBWC CRP have teamed together to form an initiative
         called Friends of the Rio Grande. The goals of this initiative are to
         increase public outreach programs throughout the border region,
         implement a volunteer monitoring program in cooperation with Texas
         Watch, promote environmental clean ups in the basin, and to provide
         recognition of outstanding efforts in environmental activities to encourage
         greater participation in environmental awareness.




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               CHAPTER 7 EDUCATIONAL PROGRAMS
               The active participation and cooperation of all Texans is necessary to
               safeguard Texas' natural resources. Everyone who lives or works in a
               watershed can potentially contribute to nonpoint source problems. Public
               education and awareness is essential to involving citizens in learning
               about their environment and taking appropriate actions to prevent
               pollution. Implementation programs typically include an education
               component to enhance public understanding and encourage participation.
               In addition, a number of state, regional, and local agencies and
               organizations have developed stand alone programs to educate and inform
               the public on environmental issues which promote stewardship and
               protection of natural resources.


Education Through Assessment
               One of the most effective ways citizens can learn about water quality and
               the problems associated with nonpoint source pollution is by conducting
               assessment activities. Learning about watersheds and how water quality is
               assessed leads to an understanding of city planning, waste treatment, land
               use and its effects on water quality, and environmental practices that
               lessen the impacts of urban growth, development, and agricultural
               practices on water quality. Volunteer monitoring and assessment programs
               that make data readily available and easy to understand gives citizens a
               sense of ownership and responsibility for their watersheds. Below is a
               discussion of some of the volunteer monitoring and assessment programs
               in place throughout the state that address nonpoint source pollution.

Texas Watch Volunteer Environmental Monitoring &
Education Program
               The Texas Watch Program serves as a valuable resource for educating the
               public about water quality issues and fostering citizen participation in
               monitoring and protecting water quality. The Texas Watch Program is
               administered through a cooperative partnership between Texas State
               University, the TCEQ, and the EPA. The Texas Watch Program supports
               NPS and other environmental education and volunteer monitoring
               activities throughout the state. Texas Watch provides assistance to
               participating partners by promoting and maintaining environmental
               education activities, such as:

               #   statewide/regional meetings and workshops
               #   a centralized volunteer water quality database
               #   a comprehensive Web site
               #   quarterly newsletters
               #   a toll free information line

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         # NPS and environmental education materials
         # certified monitoring training protocols and materials

         The Texas Watch Program, through its varied outreach activities,
         encourages individuals to adopt activities and behaviors which contribute
         to the improvement of water quality and prevention of NPS pollution. The
         Texas Watch Program trains and certifies students, volunteers, and other
         partners to collect quality assured data that can contribute to
         environmental decision making. Volunteers monitor a wide variety of
         habitats from rivers, creeks, ponds, and lakes to bays, bayous, and
         estuaries. In addition, Texas Watch forms watershed-based partnership
         networks to help citizens identify and address local water quality issues
         and concerns. The Texas Watch Partners Program solicits public and
         private entities to help train, equip, manage, and offer general support to
         the growing number of volunteer monitors across the state. This program
         is establishing strong ties between citizens, industries, river authorities,
         councils of governments, water districts, cities, local, state, and federal
         agencies, students at all grade levels, and private foundations.

The Lower Colorado River Authority—
Colorado River Watch Program
         The Lower Colorado River Authority (LCRA) is a participating Texas
         Watch partner. Protecting water quality in the lakes and rivers is a vital
         part of the LCRA's mission. In 1988, a handful of Austin citizens,
         teachers, and students began sampling water along a tributary of the
         Colorado River. Within two years, their program had expanded to about
         twenty sites along the Colorado. In 1992, the LCRA began to manage the
         Colorado River Watch Network program, and helped expand monitoring
         sites along the river from Brownwood to the Gulf of Mexico. The success
         of the program has earned grants from the National Science Foundation
         and the EPA. The Colorado River Watch Network has been honored by
         the EPA, the State of Texas, the City of Austin, and many other
         organizations.

         LCRA ensures that Network monitors are well-trained. Certified monitors
         must complete a 10-hour training process provided by LCRA. Instructors
         show volunteers how to use the testing equipment and monitors their
         practice of new data collection skills in the river. Volunteers then visit
         their designated testing site along with the instructor to test for several
         water quality indicators.

         Every year to coincide with Earth Day, the Colorado River Watch
         Network joins with other volunteer monitors to test rivers, creeks, and
         coastal waters along the Colorado River watershed. Hundreds of
         volunteers participate in 20 counties along the Upper and Lower Colorado
         River Basin. This one-day monitoring event provides LCRA with a
         snapshot of the water quality along the river. The Network continues to

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               support environmental stewardship of dedicated teachers, students, and
               other citizens who perform volunteer monitoring throughout the river
               basin.

The Aquatic Experience
               Public education and outreach has been an integral part of the Upper
               Colorado River Authority's (UCRA) efforts to educate the public about
               NPS and urban runoff abatement. The UCRA has developed an on-going
               program, "The Aquatic Experience" that offers assistance to area public
               schools by providing opportunities for teachers and students to be exposed
               to every aspect of the aquatic environment. All topics involve "hands on"
               activities to promote general water education and emphasize local water
               quality issues.

               Curriculum and workshops have been developed focusing on volunteer
               water quality monitoring, water conservation, aquatic life, and brush
               control. Assistance is provided to individuals or groups of students
               wishing to plan and implement long range investigations, research,
               studies, or water pollution abatement projects. "Aquatic Experience"
               activities take place primarily at the UCRA offices and the adjacent North
               Concho River; alternative locations, such as classrooms, or school
               sponsored events are also utilized.

               Future plans for the program include development of an on-site
               educational facility along the North Concho River for hands-on
               experiences that will allow for the collection and identification of aquatic
               organisms, identification of aquatic plants, and demonstration of an
               aquatic environment. The site will contain a native and invasive plant
               identification plot that will demonstrate both proper and improper
               conservation practices of area water resources. The site will also contain
               numerous BMPs located on existing stormwater outlets to the river.

The City of Denton Watershed Protection Program
               The City of Denton Watershed Protection Program was initiated as part of
               a plan to reduce the overall pollutants within the surface waters of Denton
               and to ensure compliance with the National Pollution Discharge
               Elimination System Storm Water Phase II rule. The Watershed Protection
               Program monitors water quality around the city and the results are made
               available to the public. The City of Denton received initial funding from
               the EPA Environmental Monitoring for Public Access and Community
               Tracking (EMPACT) grant to get the program started. Through the grant,
               physical and chemical water quality data is measured and the results are
               telemetered to the University of North Texas for additional analysis.
               Information on water quality, including realtime water quality data, is
               compiled and displayed in an easily understood format and made available
               to the public via the internet. The Watershed Protection Program has used
               EMPACT data and additional watershed monitoring data to establish a

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         preliminary baseline for the condition of the city's surface water resources.
         This preliminary baseline data will be used to evaluate future changes in
         water quality.

Education Through Implementation
         Everyday activities that go on in a watershed have a direct impact on the
         quality of water in the watershed. By learning how everyday activities
         affect water quality, Texans can change habits to protect water resources.
         The voluntary and preventive efforts of citizens, businesses, service
         organizations, and other groups are an essential part of the effort to
         address NPS pollution. The key to successful NPS management is making
         citizens aware of the existing voluntary and preventive efforts available to
         the public. The following is a discussion of the education programs in
         place to make citizens aware of the activities and practices that contribute
         to NPS pollution and their role in NPS management.

Nonpoint Source Consumer Education
         The TCEQ has developed a variety of educational outreach materials to
         increase general awareness of nonpoint source (NPS) water pollution and
         stimulate actions which can be undertaken by citizens to reduce NPS
         pollution. Outreach materials developed under this program target
         primarily urban nonpoint issues such as pet waste, yard care, household
         hazardous waste, and used motor oil. Campaign materials include radio
         and television public service announcements, pet waste posters, bilingual
         NPS bookmarks and door hangers, NPS fact sheets, and a Clean Water for
         Texas brochure. Many of the materials can be downloaded and adapted
         by organizations for local use.

Storm Drain Marking
         Many Texas communities are working to reduce nonpoint source pollution
         by labeling storm drain inlets with messages warning citizens not to dump
         polluting materials. TCEQ has developed a how-to guide for communities
         interested in starting a storm drain marking program to reduce nonpoint
         source pollution. The manual covers a range of methods for labeling storm
         drain inlets and offers examples of programs operating in selected Texas
         cities. The purpose of the manual is to give cities and community groups
         the tools to launch a successful citizen-education effort to reduce dumping
         and protect local water supplies. To order this manual (GI-212), send your
         request to educate@tceq.state.tx.us or call 512/239-0028.

Back Yard Composting and Xeriscaping
         Backyard mulching, composting, and xeriscaping not only reduce waste,
         but also benefit yards and the environment by producing healthier soil and
         reducing water and fertilizer demands. Other benefits include reduced
         erosion, run-off, and pollution. The TCEQ has developed a program to
         help citizens and communities (through a network of regional and local

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               coordinators) teach their residents practical waste reduction and pollution
               prevention through environmentally responsible yard care practices,
               including grass-cycling, composting, xeriscaping, and integrated pest
               management. TCEQ staff provides training programs, technical assistance,
               literature, audiovisual resources, and networking opportunities that
               promote voluntary diversion of yard trimmings, food scraps, clean wood
               material, unrecyclable paper, and other easily composted materials from
               landfills.

Teaching Environmental Sciences
               TCEQ's Teaching Environmental Sciences (TES) is a graduate credit
               course developed through local resources. Since 1994, TCEQ and its
               collaborators have presented classes at local colleges and universities
               throughout Texas. Each summer, the TCEQ sponsors this program for
               200-400 teachers who will use information learned in the course to
               instruct K-12 students on the importance of air, water, and waste issues
               and their impact on communities. Each course is led by a professor of
               science or education and is tailored to the region in which it is offered.
               Typically, much of the forty hours of instruction is spent outside the
               classroom, as teachers take tours and perform field tasks, such as water
               sampling and analysis. Teachers visit local industries, environmentally
               sensitive sites, water and wastewater plants, air monitoring stations,
               landfills, and/or recycling centers. They also hear from representatives of
               regulatory agencies, businesses, and community organizations.

               Several teacher workshops are held each summer for teachers interested in
               conservation and natural resource issues. The workshops are held in
               various parts of the state in cooperation with the TSSWCB. The Texas
               Environmental Education Advisory Committee of the Texas Education
               Agency approves the content of the TSSWCB sponsored workshops. As
               an approved Environmental Education Professional Development
               Provider, teachers are able to get credit hours toward their required
               continuing education units, while experiencing nature and the outdoors.

Environmental News You Can Use
               The TCEQ offers subscribers a free service called Environmental News
               You Can Use. This monthly newsletter highlights information on a
               particular theme to be used to educate customers, suppliers, employees, or
               students about why and how they can improve the environment. To
               subscribe, send your name, mailing address, and e-mail address to
               educate@tceq.state.tx.us or call 512/239-3150.

Publications and Videos
               The TCEQ has many publications available to provide assistance on
               everything from pollution prevention to regulatory guidance. Each year
               over 30,000 books, posters, and teacher guides are ordered for school


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         classrooms. Among the items most in demand are posters and coloring
         books. In addition to publications, almost a dozen videos are available on
         school recycling, waste reduction and management, and pollution
         prevention. The agency's publications and videos have caught the attention
         of educators and environmental agencies outside of Texas.

         The Association of Texas Soil and Water Conservation Districts has
         established and updates a conservation related video library that is
         maintained by the TSSWCB staff on their behalf for the benefit of local
         districts and educators. Currently, there are over 180 conservation-related
         videos in the library available to districts and teachers at no charge.
         Videos can be ordered through local soil and water conservation districts
         or the TSSWCB.

Environmental Information Line
         The 1-800-CLEANUP information line is a partnership with the private
         sector, the EPA, and other states to provide citizens an environmental
         information system that can be customized for each community. The
         system provides a single source of community-specific environmental and
         recycling information. Texans can call the hotline or go to
         www.1800clenup.org and enter their five-digit ZIP code to find
         information on local recycling, household hazardous waste collections,
         and environmental events.

Small Spill Prevention Program
         The GLO's small spill prevention program works with marinas and other
         interested parties to educate the public on ways to properly dispose of oil
         and reduce small spills. Small amounts of petroleum products may not kill
         fish and other marine organisms, but they can affect the vision, sense of
         smell, growth, and reproductive ability of marine wildlife. While small
         petroleum spills may impact marine wildlife, multiple small spills have the
         potential to impact entire water bodies. The Small Spill Prevention
         Program is an effective way to educate the public about ways to reduce
         spills and protect our marine resources.

The Texas Cooperative Extension Agricultural Outreach
Program
         The Texas Cooperative Extension (TCE) is a partnership between the
         USDA, Texas A&M University, and County Commissioners Courts. The
         basic mission of the TCE is education and dissemination of information
         relating to agriculture, home economics/consumer sciences, community
         development, and 4-H/youth. County Extension Agents deliver most of
         the educational programs of the TCE. These county agents, supported by
         specialists based at Texas A&M University in College Station and 12
         regional centers throughout Texas, provide technical information, respond
         to individual problems and questions, conduct educational meetings, and


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               establish and evaluate demonstrations to show the benefits of using
               practices based on the latest scientific research. They also provide
               educational information through radio and television programs,
               newspapers, newsletters, and bulletins. Water quality and conservation is
               one of six major program issues being addressed by agents and specialists
               on an interdisciplinary basis.

               The TCE has the organizational framework and outreach capabilities to
               help implement the informational and educational programs essential to
               any voluntary pollution abatement effort. The TSSWCB works with the
               TCE to develop educational programs concerning agricultural nonpoint
               source pollution.

The Texas A & M University On-Site Wastewater Treatment
Training Center
               The On-Site Wastewater Treatment Training Center was established in
               1997 to provide an educational mechanism for training inspectors,
               installers, site evaluators, home owners, elected officials, and others
               involved in the on-site wastewater treatment industry. The Texas
               Agricultural Extension Service, Texas On-Site Wastewater Association,
               Texas Engineering Extension Service, Texas Agricultural Experiment
               Station, Texas Commission on Environmental Quality, local installers and
               businesses, Texas On-Site Wastewater Treatment Research Council, and
               Hidalgo County Health Department played vital roles in the planning and
               construction of the South Texas International On-Site Wastewater
               Treatment Training Center. Texas currently has three training centers. The
               Training Centers demonstrate treatment units and land application systems
               for management of wastewater. The Cooperators believe that training
               centers meet the need for hands-on training concerning on-site wastewater
               treatment systems.

               There are five types of wastewater processing techniques taught and
               demonstrated at the Training Center. These concepts include septic tanks,
               anaerobic treatment, sand filters, trickling filters and constructed wetlands.
               These techniques are described later in this document as examples of best
               management practices.

Don't Mess With Texas
               The Texas Department of Transportation (TxDOT) maintains more acres
               of right-of-way than any other state department of transportation in the
               U.S. After years of collecting an increasing amount of trash from state
               highways, the agency realized that a public service campaign was needed
               to educate Texans about litter prevention. Two of the main components in
               the campaign include the Adopt-a-Highway (AAH) program and the Don't
               Mess with Texas (DMWT) program.



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         The AAH program is implemented statewide to teach Texans about litter
         prevention by allowing citizens to pick up litter along Texas highways.
         The program encourages litter pick-up by establishing sections of the
         highway to be adopted by individuals or groups for clean-up. Upon
         adopting a section of the highway, a sign will be posted along the highway
         naming the individual or group who has adopted the section of the
         highway. The program concept has been adopted by 47 other states and
         several foreign countries.

         In 1986, TxDOT secured a local, award-winning, advertising agency to
         develop a litter prevention campaign to encourage motorists to stop
         littering. Better known as "Don't Mess with Texas" (DMWT), this
         program was the first of its kind in the world. Research was completed to
         determine what groups were contributing the most litter. This group
         became the target of the litter prevention campaign. The target audience
         was men under the age of 35 who predominantly drove pickup trucks.
         Television and radio public service announcements featuring these
         targeted Texans were created. Research allows the program to reinvent
         itself periodically based upon changes in the target audience. The DMWT
         Partners program was established to allow entities to donate in-kind goods
         and services to the campaign.

Keep Texas Beautiful
         The vision of the Keep Texas Beautiful (KTB) organization was designed
         to make Texas the most beautiful state in the nation. KTB seeks to achieve
         this goal through partnerships involving government, business, civic
         groups and volunteers to address litter prevention, solid waste
         management, recycling, composting, beautification, and general
         community improvement. KTB programs empower Texans through
         education to take responsibility for enhancing their community's
         environment.

         Any Texas community can become a Keep Texas Beautiful Affiliate.
         Affiliates receive a variety of services to improve their effectiveness in
         mobilizing grassroots volunteers to beautify their communities. KTB has
         established an annual certification and recognition program for
         communities with ongoing programs for litter prevention, beautification,
         community improvement, and the minimization of solid waste.

         Keep Texas Beautiful sponsors and coordinates many of its education and
         cleanup programs in cooperation with state agencies including the TxDOT
         and the TCEQ. Keep Texas Beautiful (KTB) is currently under contract
         with the TCEQ to operate the River and Lakes Cleanup Program. Each
         year, KTB helps sponsor dozens of cleanups across the state in partnership
         with local governments, concerned citizens, community and nonprofit
         groups, schools, scout troops, businesses and companies. Volunteers pick
         up litter and debris along the shores and banks of Texas lakes and rivers.


162                                            TCEQ/TSSWCB joint publication SFR-68/04
               In return, participants receive, free of charge: trash bags, posters, T-shirts,
               press releases, and volunteer incentives.

               KTB has also taken a leadership role on the issue of illegal dumping and
               litter law reinforcement by offering seminars and conferences, and
               forming a statewide task force to share information, discuss the issue, and
               develop solutions.

The Texas Wildscapes Program
               The Texas Wildscapes Program emphasizes providing the basics for good
               habitat: food, water, and cover. With approximately 95% of Texas land
               use practices in the hands of private landowners, the importance of
               education toward a common bond is evident. The Wildscapes Program
               provides educational materials for the Texas urban residential landowner
               to promote a better-educated population which is more supportive of
               wildlife and conservation issues. The Texas Wildscapes Program can also
               be applied to community, rural, and corporate properties. The program
               introduces the concept of habitat, and provides information to the public
               regarding wildlife needs and the importance of landscaping with native
               plants. The program also promotes minimizing the use of pesticides and
               fertilizers, xeriscaping, mulching, composting, and watering practices to
               conserve water.

The Edwards Aquifer Authority
               The Edwards Aquifer Authority, a member of the Texas Alliance of
               Groundwater Districts, is a regulatory agency charged with preserving and
               protecting the Edwards Aquifer in an eight-county region including all of
               Uvalde, Medina and Bexar counties, plus portions of Atascosa, Caldwell,
               Guadalupe, Comal and Hays counties. The Authority was created by the
               Texas Legislature in 1993 with the passage of the Edwards Aquifer
               Authority Act to preserve and protect this unique groundwater resource.
               The Act created a 17-member board of directors which sets policy to
               manage, conserve, preserve, and protect the aquifer; works to increase the
               recharge; and prevent waste or pollution of the aquifer. The Act also
               established the South Central Texas Water Advisory Committee made up
               of representatives from downstream counties to interact with the Authority
               when issues related to downstream water rights are discussed.

               The goals of the Edwards Aquifer Authority are designed to fully
               implement the requirements of the Edwards Aquifer Authority Act;
               develop an effective, comprehensive management plan based on sound,
               consensus-based scientific research and technical data; maintain
               continuous spring flow; protect and ensure the quality of ground to surface
               water in the Authority's jurisdiction; forge solutions that ensure public
               trust; promote healthy economies in all parts of the region; research and
               develop additional sources of water; and provide strong, professional
               management for the Authority.

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The Barton Springs/Edwards Aquifer Conservation District
         The Barton Springs/Edwards Aquifer Conservation District (BSEACD) is
         an underground water conservation district created for the purpose of
         conserving, protecting and recharging the underground water bearing
         formations within the District, and for the prevention of waste and
         pollution of such underground water, particularly the waters in the
         formations known as the Edwards Limestone and Associated Formations
         in Northern Hays and Southern Travis Counties. The BSEACD, a member
         of the Texas Alliance of Groundwater Districts, initiates and administers
         clean up events within its district.

         The BSEACD Staff contact local schools, scouting troops, neighborhood
         groups, and place ads in local papers to request volunteers for the event.
         Creek clean ups are typically held on a Saturday morning in the fall or
         spring when temperatures are comfortable. Volunteers meet to share
         safety information, distribute bags and gloves, and pair off in groups of
         two or three people to pick-up trash. Large items such as old tires, lumber,
         metal signs, fencing, and appliances are collected by adult volunteers and
         BSEACD staff for special pick-up and disposal.

         Since many caves and sinkholes are located in rural areas which do not
         have trash collection, they become the target of illegal dumping. Cave
         cleanups are less frequent and require a special team of volunteers
         depending on the type of cave. Removal of debris from caves is labor and
         time intensive. Hoisting systems are used to remove debris from the cave.
         Final phases of cave cleanup include removal of sediment laden with
         broken glass and leached chemicals from debris.

         In addition to cleanup events, the BSEACD administers the Aquifer
         Watch Program. The Aquifer Watch Program links junior high/middle
         school students with a well near their school which is appropriate for
         water quality sampling. Students visit their "adopted well" four times
         during the school year. Prior to the well visit, a staff member visits the
         class to provide hands-on demonstrations and training the various pieces
         of equipment. During the well visit, District staff accompanies the group
         and assists with measurements of the aquifer level, water sampling, and
         on-site chemical analysis using titrators and spectrophotometers. Students
         test their groundwater samples for temperature, pH, conductivity,
         alkalinity, chlorides and nitrates. In addition to time spent in the field
         collecting water samples and measuring water levels, District staff works
         with the teachers and students to help them learn more about their
         "adopted" well.

The City of Austin's "Grow Green" and "Earth Camp"
         Recognizing that one of the most effective ways to protect water quality is
         through pollution prevention, the City of Austin sponsors a variety of
         educational programs designed to encourage environmentally responsible

164                                            TCEQ/TSSWCB joint publication SFR-68/04
               behavior. One of the most comprehensive programs is "Grow Green"
               which is a partnership between the City of Austin, the Texas Cooperative
               Extension (TCE), and local nurseries. This program is a model for how
               local government can work with the horticulture industry to protect water
               quality.

               The concepts developed under this program are a result of sound science
               and research. The program stresses planting native and adapted plants
               which require little water and few pesticides to survive in Texas. One
               strategy, stressed by the City of Austin, includes reducing the use of turf
               grass. Turf grass can be a high maintenance yard material, often requiring
               fertilizing, disease control, and supplemental watering. Consideration of
               options such as increased native and adapted plant beds or mulched or
               native areas to reduce the need for additional chemicals, watering, and
               mowing is emphasized.

               The program recommends such practices as having soil tested to ensure
               that only nutrients missing are added, leaving grass clippings on the lawn
               instead of bagging them to reduce the need for fertilizer, using organic
               fertilizers, and minimizing the use of pesticides and other chemical
               treatments. The "Grow Green Plant Guide" was created to help residents
               select beautiful native plants which are drought tolerant and resistant to
               pests and diseases. In doing so, it is easier to adhere to the principles
               outlined in the Grow Green Program.

               Now in its ninth year, Earth Camp is the City of Austin's four-day,
               outdoor, watershed education program for fifth-grade elementary school
               students. The primary focus for Earth Camp Austin is educating students
               about the many things necessary to the preservation of water quality in
               Austin watersheds. The lessons entail study of the geography and natural
               history of Austin's watersheds, water quality, wildlife in our watersheds,
               hydrology and geology of the Barton Springs/Edwards Aquifer, green
               gardening, and other related topics. The approach is based on field trips
               with hands-on scientific investigations. Participating students are expected
               to do some homework that includes family involvement and group work.

               The camp runs during the school year, from September through June.
               Participating teachers attend training, teach the Earth Camp curriculum
               before the students attend camp, and manage and assist the students during
               camp. The City of Austin provides the environmental expertise, teacher
               training, field trips, tours, lessons, and equipment.

The City of Houston's WET in the City Program
               Water Education for Teachers (WET), is a nationally recognized training
               for urban educators that includes an interdisciplinary activity and
               curriculum guide for kindergarten through 12th grades. The program helps
               students learn about their local environment and how to conserve precious
               natural resources.

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         Students, educators, and administrators in Team WET Schools make a
         commitment to increase environmental education and stewardship in their
         community. Each school's Team WET Coordinator receives technical
         assistance from the City of Houston Water Conservation staff and a Team
         WET Kit that includes a water test kit, guides for planning water festivals,
         instructions for conducting water quality audits, and other materials for
         successful student and community projects. First through 8th grade
         students create their own water conservation messages to help educate
         their peers and increase public awareness of conservation issues with the
         "Design-a-T-Shirt Contest”.

         Every year, the Mayor of Houston declares the month of May "Water
         Conservation Awareness Month". The two-day event features
         conservation skits, a conservation scavenger hunt, and booths sponsored
         by environmental organizations, city, and county departments. Public
         Works Engineering also conducts an annual program called "Water Wise
         and Energy Efficient." This two-week education/retrofit program focuses
         on water and energy conservation.

         In addition to the education and outreach activities, Public Works
         Engineering also targets water use customers by distributing more than
         20,000 "water saver" kits to citizens to help them reduce their water
         consumption and water bills. The kits contain a displacement bag (½
         gallon) for the toilet tank, dye tablets to test for leaks, a "tankee clipper", a
         flow restrictor, and an instruction sheet.

         The City of Houston actively participates in other special events such as
         National Drinking Water Week, Earth Day events, Bay Day, Home &
         Garden Shows, school health fairs, and other environmentally focused
         festivals and community events in order to implement a comprehensive
         water conservation program for residents of all ages.

The City of Fort Worth Environmental Education Programs
         The City of Fort Worth's Environmental Management Department has
         established a Public Education division that offers adult information
         presentations, student programs, publications, and special events about
         environmental concerns in Fort Worth. Program components include
         composting, environmentally friendly lawn care practices, storm water
         and wastewater instruction curriculum, and waste reduction through
         recycling demonstrations.

         The Department of Environmental Management has also launched a pilot
         Environmental Mapping Education web site for the Fort Worth ISD. The
         web site incorporates environmental science with the digital mapping of
         Geographic Information Systems. Students can log onto the site and work
         through online mapping, water quality, air quality, and spill response
         lessons. Students interactively map local area rivers, streets, parks, and

166                                               TCEQ/TSSWCB joint publication SFR-68/04
               watersheds. Each lesson poses a problem, and explains a step-by-step
               mapping process to find a solution.

The City of San Antonio's Curbside Recycling Program
               The City of San Antonio's recycling program is the largest curbside
               recycling program in the State of Texas. In 1995, the program was
               initiated in a quadrant of the city and full implementation citywide was
               completed in three years. The program created "Binny" the Recycling Bin
               as their mascot and an advertising mechanism for the public. The
               program's ultimate success is a result of public and private cooperation.

               The program provides service once a week, and recyclables are collected
               using an 18-gallon green recycling bin which the City has distributed to all
               residents at no cost. The recyclables are collected curbside for ease of
               collection. The City accepts newspaper, glass jars and bottles, aluminum
               cans, plastic household jars and bottles, aerosol cans, and steel and tin
               household containers.




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CHAPTER 8 BEST MANAGEMENT PRACTICES
        Nonpoint source management programs in Texas make use of a wide
        variety of Best Management Practices (BMPs). This section provides an
        overview of the primary BMPs in use or identified for use in Texas. This
        is not a complete listing of all acceptable BMPs for nonpoint source
        pollution control programs and projects in Texas. Whether or not projects
        receive funding under CWA §319(h), the use and demonstration of
        innovative practices not listed here are acceptable and valuable,
        particularly where their effectiveness can be evaluated and monitored.

Definition of Best Management Practices
        Best Management Practices (BMPs) are those practices determined to be
        the most efficient, practical, and cost-effective measures identified to
        guide a particular activity or to address a particular problem. Nonpoint
        Source BMPs are specific practices or activities used to reduce or control
        impacts to water bodies from nonpoint sources, most commonly by
        reducing the loading of pollutants from such sources into storm water and
        waterways. Programs that implement these BMPs are addressed in
        Chapter 5.

        There are many NPS BMPs in use in Texas. "Best" is relative to the
        particular needs or purposes and the specific site characteristics to be
        addressed.

        Since most BMPs address specific management needs and site
        characteristics, it is helpful to identify and classify BMPs according to
        where they are most effective. The next section categorizes BMPs
        according to their use in managing the various parts of the NPS pollution
        pathway. The final section addresses which BMPs best address different
        activities and disturbances which are sources of NPS pollution.

        A separate document, the BMP Finder
        (www.tceq.state.tx.us/compliance/monitoring/stakeholders/nps-stakeholders.html)
        provides a more comprehensive description and discussion of important
        Texas NPS BMPs and guidance on their use. The BMP Finder is
        extensively cross-referenced to help in identifying and comparing BMPs
        which are closely related and to sort out the many different names and
        variations in BMPs which are currently in use.

Categories of Nonpoint Source Pollution
Management
        The management of nonpoint source pollution involves a strategic
        combination of practices designed to prevent and intercept the entry of
        nonpoint source pollutants into Texas waters along the entire storm water


168                                                TCEQ/TSSWCB joint publication SFR-68/04
               pathway. Most BMPs address one specific stage of this pathway, although
               they may be applied in different situations and to different sources.
               # Preventive practices: preventing or reducing the contact of
                   pollutants with storm water
               # Cleanup practices: recapturing pollutants that have spilled onto
                   or contaminated a location
               # Erosion control practices: protecting material at the soil surface
                   from entering storm water runoff
               # Sediment control practices: preventing materials already
                   suspended in storm water from leaving a site
               # Runoff control practices: reducing the volume, velocity, and/or
                   erosive force of storm water runoff flow
               # Channel protection practices: preventing erosion of channels,
                   stream banks, and streambeds
               # Habitat restoration practices: restoring natural communities
                   that minimize erosion and remove water pollutants, especially
                   along a waterway and its riparian zone
               # In-stream remediation practices: removing nonpoint source
                   pollutants or restoring water quality characteristics in a
                   waterway
               # Other BMPs, such as public education, for example, may
                   address two or more of these stages in the storm water pathway
                   simultaneously.

               For optimum effectiveness, NPS programs should attempt to coordinate
               all BMPs in a watershed. BMPs can either complement each other –
               erosion control on a site typically increases the effectiveness and reduces
               the size and maintenance requirements of the site's sediment controls – or
               undermine each other – armoring a straight stretch of channel or stream
               banks may increase flow velocity and channel erosion downstream. In
               general, controlling NPS pollutants through prevention where possible is
               most cost effective. Control of these pollutants generally becomes more
               difficult and expensive the farther they travel down the storm water
               pathway.

               The first table below presents selected Texas BMPs in each of these
               categories along the storm water pathway.




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Table 8.1 Best Management Practices by Category

 Management Category and Description                            Typical BMP Examples
 Preventive BMPs
 Preventive BMPs, sometimes called source controls, are         Planning, policy, and regulatory activities
 management techniques or designs that prevent or reduce        Using alternate, less polluting materials
 the exposure of substances to precipitation, storm water,
 or surface waters. All policies and practices that prevent     Housekeeping to contain and cover
 the release of materials to the open air, soil, or water are   materials and wastes, or keep them indoors
 preventive BMPs. Such practices and safeguards comprise        Minimize the extent and duration of land
 a large part of the rules, guidelines, and permit              disturbance activities
 requirements for facility management and for the storage,
 transport, processing, and disposal of wastes and              Well plugging
 hazardous materials administered by TCEQ and other             Recycling and composting, including
 regulatory agencies.                                           rainwater harvesting
                                                                Household Hazardous Waste and similar
                                                                collections

 Cleanup BMPs
 Cleanup BMPs remove or remediate nonpoint source               Spill response
 pollutants which have contaminated a specific area. In         Contaminated site cleanup
 most cases of significant contamination, the selection and
 implementation of these BMPs is governed specifically          Trash-litter cleanup
 under agency rules. Other cleanup BMPs, such as cleanup        Increased-efficiency street sweeping
 of litter or illegally disposed materials, are more
 discretionary.

 Erosion Control BMPs
 Erosion control BMPs maintain the integrity of the land        Mulches and blankets
 surface to prevent material at the surface from entering       Vegetation preservation and establishment
 storm water or surface water.
                                                                Riprap on temporary traffic areas

 Sediment Control BMPs
 For material that escapes erosion control BMPs and enters      Inlet protection
 storm water runoff, the next line of defense is sediment       Extended detention basins
 control. Sediment control BMPs detain runoff before it
 leaves a site to filter out and/or precipitate suspended       Vegetated filter strips
 particles, including soluble pollutants which may be           Sediment trap/stone outlet
 attached to solid particles.
                                                                Filter berms and silt fences
                                                                Sand filter systems
                                                                Constructed or restored wetlands


 Run-on and Runoff Control BMPs
 Runoff control BMPs reduce the volume, velocity, and           Level spreaders
 erosive force of storm water through diversion, infiltration   Interceptor swales
 or absorption of storm water into the surface or through
 physical impediments which slow the flow of storm              Diversion dikes to exclude storm water
 water.                                                         from off-site




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 Channel, Stream Bank, and Streambed Protection
 BMPs                                                         Prevention of disturbance by exclusion of
                                                              livestock, off-road vehicles, etc.
 These BMPs protect the integrity of stream beds and
                                                              Channel shaping to reduce velocity and
 stream banks to prevent erosion and loss. Stream banks
                                                              erosive force
 can be protected or restored either by increasing
                                                              Gabions or riprap lining of channels
 resistance of the bank to erosion or by decreasing the
                                                              Reinforcing or armoring exposed surfaces
 energy of the water at the point of contact with the bank,
                                                              Stream bank vegetation
 for example by deflecting or interrupting flows

 Habitat Restoration BMPs
 These are a special subset of biological erosion control     Reestablish hydrology of wetlands and
 and stream protection BMPs. They establish or protect the    riparian areas
 natural communities which most effectively protect           Restoration of wetland native plant
 waterways and riparian areas from erosion..                  communities


 In-Stream and Lake Remediation BMPs
 Once nonpoint source pollutants have affected a water        Mechanical aeration to restore dissolved
 body, another set of BMPs may reduce or reverse these        oxygen
 effects.                                                     Chemical treatments – e.g. pH adjustment

 Other BMPs                                                   Public education




Categories of Nonpoint Sources and Associated
Pollutants
                    Best Management Practices can be classified not only by management
                    category but also by the primary nonpoint sources of pollution and the
                    types of pollutant loadings and other impacts that each of these sources
                    tends to cause. Many BMPs are used to address a broad range of NPS
                    sources, particularly the erosion and sediment control BMPs.

        Major Sources
                #        Agriculture
                #        Silviculture (Forestry)
                #        Urban storm water
                #        Construction (including road construction)

        Special Sources
                #        Atmospheric deposition
                #        Boats and marinas
                #        Septic and other on-site wastewater systems
                #        Mining and petroleum production
                #        Industrial sites
                #        Roads
                #        Spill containment and contaminant remediation

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                #        Hydromodification and stream bank protection
                #        Habitat degradation
                #        Wildlife
                #        In-stream remediation
                #        Underground storage tanks


Table 8.2 Best Management Practices by Source


 Sources and Activities                  Pollutants and                   BMP Examples
                                         Other Impacts
 Agriculture                             Sediment from exposed soil;      Animal Mortality Facility,
 Tilling, cultivation, harvesting, and   nutrients from fertilizers;      Alley Cropping, Brush
 other soil surface exposure and         chemicals from pesticides,       Management, Closure of
 disturbances; chemical applications     streamflow and temperature       Waste, Impoundments,
                                         increases caused by              Composting Facility,
                                         vegetation removal               Conservation Crop Rotation,
                                                                          Constructed Wetland,
                                                                          Contour Buffer Strips, Cover
                                                                          Crop, Cross Wind
                                                                          Stripcropping, Diversion
                                                                          Dam, Dike, Filter Strip,
                                                                          Firebreak, Grade
                                                                          Stabilization Structure,
                                                                          Grassed Waterway, Irrigation
                                                                          Land Leveling, Manure
                                                                          Transfer, Nutrient
                                                                          Management, Pest
                                                                          Management, Pond Sealing
                                                                          or Lining - Bentonite
                                                                          Treatment, Prescribed
                                                                          Grazing, Residue
                                                                          Management - No Till/strip
                                                                          till, Riparian Forest Buffer,
                                                                          Sediment Basin, Surface
                                                                          Roughening, Terrace, Use
                                                                          Exclusion, Waste Utilization,
                                                                          Water and Sediment Control
                                                                          Basin, Well
                                                                          Decommissioning

 Silviculture/Forestry                   Sediment; nutrients from         Broad-Based Dips;
 Road construction and use, timber       forest fertilizer application;   Cross-Road Drainage
 harvesting, mechanical equipment        chemicals from pesticide         Culverts; Haul Roads; Log
 operation, prescribed burning, site     application; temperature         Sets, Field Chipping Sets and
 preparation, fertilizer and pesticide   changes resulting from           Portable Mill Locations;
 application                             riparian vegetation removal      Revegetation of Disturbed
                                         and sediment additions; and      Areas; Rolling Dips; Skid
                                         streamflow increases caused      Trails; Stream Crossings;
                                         by vegetation removal.           Streamside Management
                                                                          Zones (SMZ); Salvage &
                                                                          Sanitation in SMZs; Water
                                                                          Bars; Wing Ditch


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 Sources and Activities              Pollutants and                   BMP Examples
                                     Other Impacts
 Urban and Industrial                Sediment from disturbed          Clean-Up; Composting;
 Industrial, commercial, and         land; nutrients and pesticides   Animal Waste Collection;
 residential activities; lawn and    from lawn and landscape          Curb Elimination; Debris
 landscape management; pets and      management; pathogens and        Removal; Exposure
 wildlife; pavement and other        nutrients from pet and           Reduction; Landscaping And
 impervious covering of the soil;    wildlife waste; oil and          Lawn Maintenance Controls;
 vehicular traffic; production and   grease; petroleum                Minimization Of Pollutants,
 use of synthetic chemicals;         hydrocarbons                     Parking Lot/Street Cleaning
 improper disposal of wastes                                          Operations, Road Salt
                                                                      Controls, Streambank
                                                                      Stabilization, Land Use
                                                                      Management Practices,
                                                                      Buffers, Easements, Solid
                                                                      Waste Collection Facilities,
                                                                      Extended Detention Basin,
                                                                      Infiltration Device, Oil and
                                                                      Grease Trap Device, Porous
                                                                      Pavement, Sand Filter, Rain
                                                                      Garden, Vegetative
                                                                      Practices, Filter Strip,
                                                                      Grassed Swale, Wetland,
                                                                      Wet Retention Pond




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Sources and Activities             Pollutants and                  BMP Examples
                                   Other Impacts
Construction                       Sediment from bare soil and     MINIMIZE EXTENT
Removal of the soil’s protective   stockpiles; nutrients from      &DURATION OF
cover; unpaved traffic surfaces;   temporary and permanent         DISTURBANCE
earthmoving; open stockpiling of   vegetation establishment;       SURFACE
erodible materials;                streamflow increases caused     STABILIZATION
                                   by vegetation removal and       Mulching, Preserving
                                   impervious ground               Natural Vegetation,
                                   coverings; waste chemicals      Recontouring, Permanent
                                   and debris from painting and    Seeding, Riprap, Sodding,
                                   other construction wastes;      Surface Roughening,
                                                                   Temporary Gravel
                                                                   Construction Access,
                                                                   Temporary Seeding,
                                                                   Topsoiling, Erosion Control
                                                                   Compost, Erosion Control
                                                                   Blanket
                                                                   Runoff Diversion
                                                                   RUNOFF CONVEYANCE
                                                                   MEASURES
                                                                   Grass-Lined Channel or
                                                                   Swale, Hardened Channel,
                                                                   Interceptor Swale,
                                                                   Temporary Slope Drain,
                                                                   Paved Flume, Runoff
                                                                   Diversion Dike
                                                                   OUTLET PROTECTION
                                                                   Level Spreader, Outlet
                                                                   Stabilization Structure
                                                                   SEDIMENT TRAPS AND
                                                                   BARRIERS
                                                                   Block and Gravel Drop Inlet
                                                                   Protection, Excavated Drop
                                                                   Inlet Protection, Fabric
                                                                   Storm Drain Inlet Protection,
                                                                   Sediment Basin, Rock Dam,
                                                                   Sediment Fence/Straw Bale
                                                                   Barrier, Sediment Trap, Sand
                                                                   Filter System, Sod Drop Inlet
                                                                   Protection, Vegetated Filter
                                                                   Strip, Filter Berm (rock,
                                                                   sandbag, compost, mulch),
                                                                   Filter Sock (compost or
                                                                   mulch), Brush Barrier,
                                                                   Wetlands, Wet Basin,
                                                                   Extended Detention Basin
                                                                   STREAM PROTECTION
                                                                   Streambank Stabilization,
                                                                   Streambed Stabilization,
                                                                   Temporary Stream Crossing




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 Sources and Activities                 Pollutants and                 BMP Examples
                                        Other Impacts
 Atmospheric deposition                 Windblown pollutants of        Pollution prevention and
 Metals from volcanic activity,         greatest concern include       emissions control measures
 forest fires, windblown dust,          metals, such as mercury, and   to reduce the exposure and
 vegetation, sea spray, the smelting    nitrogen.                      release of pollutants to the
 of ores, and stack and fugitive dust                                  air; also, erosion and
 (dust that escapes emission                                           sediment control BMPs
 controls).                                                            reduce the entry of soil-
 Nitrogen from microbial                                               bound pollutants, including
 decomposition, combustion of                                          those from atmospheric
 fossil fuels, fertilizer and                                          deposition, into storm water.
 explosives factories, and
 volatilization of applied ammonia-
 based fertilizers

 Boats and marinas                      BOD (biological oxygen         No-Wake Zones, Protected
 Discharge of sewage, fish              demand) and SOD (sediment      Shallow Water Habitats,
 cleanings, and food waste from         oxygen demand); nutrients;     Proper Storage and Handling
 recreational boats;                    pathogens; metals; arsenic     of Materials, No-Discharge
 bilge from boat ballast; paints,       from paint pigment,            Zones, Pumpout Facilities
 pesticide, and wood preservatives;     pesticide, and wood            (Fixed-Point, Portable, and
 chemicals used to deter metal          preservatives; zinc from       Dedicated Slipside Systems),
 corrosion; biocidal antifouling        anodes used to deter metal     Boat Repair and
 agents; boat and marina                corrosion; copper and tin;     Maintenance Restrictions,
 construction; boat hull bottom         copper and other metals.       Solid Waste Collection
 painting and scrapings; boat           Both copper and tin (as        Facilities, Fish Cleaning
 operation and dredging activities;     butyltin) have been found at   Facilities/Controls
 refueling activities and bilge or      toxic concentrations in
 fuel discharges                        marina waters nationwide,
                                        deriving from boat hull
                                        bottom paints and scrapings;
                                        turbidity; petroleum
                                        hydrocarbons; oil and grease

 Septic and other on-site               Nitrogen, phosphorus,          Chemical Additive
 wastewater systems                     organic matter, toxic          Restrictions, Elimination of
 Discharges, seepage, or other          chemicals, and bacterial and   Garbage Disposals,
 releases from failing or improperly    viral pathogens                Inspection and Maintenance,
 installed on-site wastewater                                          Phosphorus Detergent
 treatment systems                                                     Restrictions, Denitrification
                                                                       Systems, Floating Aquatic
                                                                       Plant (Aquaculture) Systems,
                                                                       Upgrade or Replacement of
                                                                       Failing Systems, Alternating
                                                                       Bed System, Mound (Fill)
                                                                       System, Pressure
                                                                       Distribution (Low Pressure
                                                                       Pipe) System, Point-of-Sale
                                                                       Inspections, Inspection and
                                                                       Permitting of Installed
                                                                       Systems, Local Ordinances

 Mining and petroleum                   Salt, sediment, petroleum      Well and Testhole
 production                             hydrocarbons                   Inspection; Plugging Wells
                                                                       and Testholes



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Sources and Activities                Pollutants and                  BMP Examples
                                      Other Impacts
Spill containment and                 Petroleum hydrocarbons and      HHW and Empty Pesticide
contaminant remediation               other toxic chemicals           Container Collection, Storm
Spills, leaks, or other releases of                                   Drain Stenciling, Spill
chemicals and other pollutants                                        Cleanup, Slurry Walls,
                                                                      Grouting, Geomembranes,
                                                                      Hydrodynamic Control,
                                                                      Surface Seals, Surface
                                                                      Drainage, Excavation, Soil
                                                                      Venting, In-Situ Treatment
                                                                      of Contaminants

Stream bed and stream bank            Sediment, organic matter,       No-Wake Zones, Livestock
protection                            nutrients                       Exclusion, Stream Bank
Increased stream flow and erosive                                     Setbacks, Blankets and
force can damage and erode stream                                     Mattresses, Branch Packs,
channels                                                              Composite Revetment,
                                                                      Gabions, Live Fascines
                                                                      (Wattling Bundles), Live
                                                                      Staking, Tree Revetment,
                                                                      Vegetative Cover, Live
                                                                      Cribwall, Check Dam,
                                                                      Deflectors, Grade
                                                                      Stabilization Structure, Low-
                                                                      Head Dam (Weir)

Underground storage tanks             Petroleum hydrocarbons and      Slurry Walls, Grouting,
Spills, leaks, and other releases     related chemicals               Geomembranes, Surface
                                                                      Seals, Surface Drainage,
                                                                      Hydrodynamic Control,
                                                                      Pumping, Interceptor
                                                                      Systems, Soil Venting,
                                                                      Excavation, Biological
                                                                      Degradation, Chemical
                                                                      Degradation, Inspection




176                                                        TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX A
CERTIFICATION OF AUTHORITY
Kathleen White, Chairman
R. B. "Ralph" Marquez, Commissioner
Larry Soward, Commissioner
Glenn Shankle, Executive Director


                 TEXAS COMMISSION ON ENVIRONMENTAL QUALITY
                          Protecting Texas by Reducing and Preventing Pollution


                         GENERAL COUNSEL'S CERTIFICATION

The State of Texas, through the Texas Commission on Environmental Quality (commission
or TCEQ), is currently in the process of seeking full approval for its Texas Nonpoint Source
Pollution Assessment Report and Management Program ("NPS Program"). The Environmental
Protection Agency (EPA) has given full technical approval to the NPS program.

In accordance with Section 319(b)(2)(D) of the Clean Water Act, each management program
proposed for implementation must include:

          A certification of the attorney general of the State or States (or the chief
          attorney of any State water pollution control agency which has independent
          legal counsel) that the laws of the State or States, as the case may be, provide
          adequate authority to implement such management program or, if there is not
          such adequate authority, a list of such additional authorities as will be
          necessary to implement such management program .

Following a review of the referenced 2005 NPS Program, the General Counsel certifies, under
Section 319(b)(2)(D) of the Clean Water Act, that the laws of the State of Texas provide
adequate authority to implement the NPS Program, as more specifically described below.

                                      Relevant Legal Authority

The TCEQ is the state agency given primary responsibility for implementing the constitution
and laws of the state relating to the conservation of natural resources and protection of the
environment.1 Specifically, the commission has general jurisdiction over the state's water
quality program, including:

          ! the issuance of permits;
          ! the enforcement of water quality rules, standards, orders and permits; and
          ! water quality planning.2

      1
          Texas Water Code (TWC) §5.012.

      2
          TWC §5.013.

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The commission also has the power to perform any acts whether specifically authorized by the
Texas Water Code (TWC) or other law or implied by the TWC, necessary and convenient to
the exercise to the exercise of its jurisdiction and powers.3 The commission is also authorized
to adopt rules necessary to carry out its duties and powers.4

Chapter 26 of the TWC provides that the commission shall establish the level of quality to be
maintained in, and shall control the quality of, the water in the state.5 Waste discharges or
impending waste discharges covered by the provisions of Chapter 26 are subject to reasonable
rules or orders adopted or issued by the commission in the public interest. The commission has
also been given the powers and duties specifically prescribed by Chapter 26 and all other
powers necessary or convenient to carry out those statutory responsibilities.

Section 26.012 requires the executive director to prepare and develop a general,
comprehensive plan for the control of water quality in the state, which shall be used as a
flexible guide by the commission. Additionally, § 26.017 requires the commission to:

         ! encourage voluntary cooperation by the people, cities, industries, associations,
           agricultural interests, and representatives of other interests in preserving the
           greatest possible utility of water in the State;

         ! encourage the formation and organization of cooperative groups, associations,
           cities, industries, and other water users for the purpose of providing a medium to
           discuss and formulate plans for attainment of water quality control;

         ! establish policies and procedures for securing close cooperation among state
           agencies that have water quality control functions; and

         ! cooperate with the governments of the United States and other states and with
           official or unofficial agencies and organizations with respect to water quality
           control matters.

Section 26.023 of the TWC provides that the commission is the sole and exclusive authority
for setting water quality standards, and must set water quality standards for the water in the
state by rule, and may amend the standards from time to time. The standards must be based
on all quality assured data obtained by the commission, including local watershed and river
basin database. The commission may also issue permits and amendments to permits for the
discharge of waste or pollutants into or adjacent to water in the state and may refuse to issue
a permit when issuance would violate the provisions of any state or federal law or rule or




     3
         TWC §5.102.
     4
         TWC §5.103.

     5
         TWC §26.011.

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regulations.6 The commission must also consider the compliance history of an applicant and
its operator in considering issuance, amendment or renewal of a permit to discharge effluent.7

The commission may prescribe reasonable requirements for a person making discharges of any
waste or of any pollutant to monitor and report on his activities concerning collection,
treatment, and disposal of the waste or pollutant.8 The executive director has the responsibility
for establishing a water quality sampling and monitoring program for the state. All other state
agencies engaged in water quality or water pollution control activities are statutorily required
to coordinate those activities with the commission.9 Additionally, the commission and
employees or agents of the commission are authorized to enter any public or private property
at any reasonable time for the purpose of inspecting and investigating conditions relating to
the quality of water in the state.10

Local governments may also inspect the public water in its area and may execute cooperative
agreements with the commission to provide for the performance of water quality management,
inspection, and enforcement functions and for the transfer of money or property from any party
to the agreement to another party for the purpose of water quality management, inspection,
enforcement, technical aid and education, and the construction, ownership, purchase,
maintenance, and operation of disposal systems.11 Municipalities may also establish a water
pollution control and abatement program for the city to include services and functions which,
in the judgement of the city or as may be reasonably required by the commission, will provide
effective water pollution control and abatement for the city.12 Municipal water pollution
control and abatement programs must be submitted to the commission for review and
approval.13 Further, the commission shall hold annual hearings in counties that include
particularly sensitive areas, such as the Edwards Aquifer, to receive evidence on actions the
commission should take to protect the aquifer from pollution.14 To further this goal, the
commission has adopted rules in 30 Texas Administrative Code (TAC) Chapter 213 which
regulate development activities over the Edwards Aquifer.




     6
         TWC § 26.027.
     7
         TWC § 26.0281.
     8
         TWC § 26.042.

     9
          TWC §26.127.

     10
          TWC §26.014.

     11
          TWC § 26.171 and § 26.175.

     12
          TWC § 26.177.

     13
          Id.

     14
          TWC § 26.046.

 TCEQ/TSSWCB joint publication SFR-68/04                                                    179
The commission also has broad authority over the location, design, construction, installation,
and proper functioning of on-site sewage disposal systems15 and has adopted corresponding
rules in 30 TAC Chapter 285 to encourage the use of economically feasible alternative
techniques and technologies.

Chapter 7 of the TWC establishes the enforcement authority of the commission. The
commission may initiate an action to enforce provisions of the TWC, THSC within the
jurisdiction of the commission and rules, orders, permits, or other decisions of the
commission.16 The commission must report at least once a month at a meeting of the
commission on enforcement actions taken by the commission or others and the resolution of
those actions.17 The commission may assess an administrative penalty against a person for
violations with a maximum amount of $10,000 a day for each violation.18 Persons charged with
a penalty have the option of paying it in full, paying the penalty, paying an installment, paying
or not paying in full and filing a petition for judicial review.19 If a person fails to comply with
that section, then the commission or executive director may refer the matter to the attorney
general for enforcement.20

Texas Department of Transportation
The Texas Department of Transportation (TxDOT) is the primary agency in the State
responsible for highway, road, and bridge construction. As described in the 2005 NPS
Program, TxDOT’s approach in addressing nonpoint source pollution is to limit impacts to
receiving waters through implementation of highway design specifications. TxDOT has been
conferred broad authority by the legislature.21 TxDOT and TCEQ have entered into
Memoranda of Understanding which has been adopted by reference in 30 TAC § 7.119 with
regard to the assessment of water quality impacts resulting from certain transportation projects.

Texas Railroad Commission
The Texas Railroad Commission (TRRC) is solely responsible for the control and disposition
of waste and the abatement and prevention of surface and subsurface water pollution resulting
from activities associated with the exploration, development, and production of oil and gas or
geothermal resources, including:




      15
           Texas Health and Safety Code (THSC) § 366.011.
      16
           TWC §7.002.

      17
           TWC § 7.003.

      18
           TWC §7.051 and §7.052.

      19
           TWC § 7.061.

      20
           TWC § 7.066.

      21
           Texas Transportation Code, Chapter 201.

  180                                                       TCEQ/TSSWCB joint publication SFR-68/04
          ! activities associated with the drilling of injection water source wells which
            penetrate the base of useable quality water;

          ! activities associated with the drilling of cathodic protection holes associated with
            the cathodic protection of wells and pipelines subject to the jurisdiction of the
            Railroad Commission of Texas;

          ! activities associated with gasoline plants, natural gas or natural gas liquids
            processing plants, pressure maintenance plants, or repressurizing plants;

          ! activities associated with any underground natural gas storage facility,

          ! activities associated with any underground hydrocarbon storage facility; and

          ! activities associated with the storage, handling, reclamation, gathering,
            transportation, or distribution of oil or gas before refining.22

To prevent pollution of streams and public bodies of surface water of the State, the Railroad
Commission is must adopt and enforce rules in accordance with Texas Natural Resource Code
§ 91.101 relating to the drilling of exploratory wells and oil and gas wells. Additionally, TCEQ
and TRRC have entered a Memorandum of Understanding adopted by reference in 30 TAC
§ 7.117 concerning cooperation and the division of jurisdiction between the agencies regarding
wastes that result from, or are related to, activities associated with the exploration,
development, and production of oil, gas, or geothermal resources, and the refining of oil.

Texas Parks and Wildlife Department
The Texas Parks and Wildlife Department is authorized to regulate the use of department lands
for oil, gas, and other mineral recovery and associated activities as the department considers
reasonable and necessary to protect the surface estate. The Texas Parks and Wildlife is
authorized by TWC § 26.129 to enforce the provisions of the Texas Water Code to the extent
that any violation affects aquatic life and wildlife.

Wetlands
The United States Army Corps of Engineers (Corps) is the principle authority for all dredging
operations affecting bays and estuaries of Texas. While EPA has designated the Corps as the
implementing agency under Section 404 of the CWA, the TCEQ is responsible for completing
Section 401 Water Quality Certifications. The commission has enacted regulations in 30 TAC
Chapter 279 establishing procedures and criteria for applying for, processing, and reviewing
state certifications under CWA, §401, for activities under the jurisdiction of the agency for the
purpose maintaining the chemical, physical, and biological integrity of the state's waters
consistent with the Texas Water Code and the federal CWA. It is the policy of the commission
to achieve no overall net loss of the existing wetlands resource base with respect wetlands
functions and values in the State of Texas.
Spill Response


     22
          TWC § 26.131.

 TCEQ/TSSWCB joint publication SFR-68/04                                                    181
The Texas Oil and Hazardous Substances Spill Prevention and Control Act provides that it is
the policy of the State to prevent the spill or discharge of hazardous substances into waters in
the State and to cause the removal of any such spills and discharges without undue delay.23
In accordance with the Act, the commission is the lead agency in spill response matters and
shall conduct spill response for the state, and shall otherwise administer the provisions of the
Act. The commission has also been designated by the Governor as the state's lead agency for
Superfund activities and as the state's representative to the federal Regional Response Team
in accordance with the Comprehensive Environmental Response, Compensation, and Liability
Act, 42U.S.C. §§ 9601- 9675; the Water Pollution Prevention and Control Act, 33 U.S.C. §§
12511387; and the National Oil and Hazardous Substances Pollution Contingency Plan, 40
CFR Part 300. Under the authority of the Solid Waste Disposal Act, the commission has broad
removal authorities with respect to the cleanup of a release or threatened release of hazardous
substances at a facility on the State registry. 24

Funding Mechanisms
The executive director, with the approval of the commission, may execute agreements with
the United States Environmental Protection Agency or any other federal agency that
administers programs providing federal cooperation, assistance, grants, or loans for research,
development, investigation, training, planning, studies, programming, and construction related
to methods, procedures, and facilities for the collection, treatment, and disposal of waste and
other water quality control activities. The commission is authorized to accept federal funds for
these purposes and for other purposes consistent with the objectives of Chapter 26 of the TWC
and may use the funds as prescribed by law or as provided by agreement.




                                             Derek Seal
                                             General Counsel
                                             Texas Commission on Environmental Quality




     23
          TWC Chapter 26, Subchapter G.
     24
          THSC Chapter 361.

 182                                                     TCEQ/TSSWCB joint publication SFR-68/04
TCEQ/TSSWCB joint publication SFR-68/04   183
Appendix B
Priority Water Bodies
The following lists of priority water bodies are based on the Texas Water Quality Inventory
and 303(d) List. In addition, the list includes some unimpaired water bodies targeted for
pollution prevention efforts such as development of Watershed Protection Plans. The water
bodies provided in these lists represent the state’s priorities for CWA §319(h) funding for
both implementation and assessment activities as defined. However, funding is not limited
to these water bodies. These lists are subject to change and will be revised as needed.

Surface Water
Table B.1 Priority Water Bodies - Surface Water
  Segment        Segment Name                  Parameter of Concern           Assessment or
  Number                                                                      Implementation
  0101A     Dixon Creek                  bacteria                                 Assessment
  0102      Lake Meredith                mercury in walleye                       Assessment
  0199A     Palo Duro Reservoir          depressed dissolved oxygen               Assessment
  0201A     Mud Creek                    bacteria                                 Assessment
  0202D     Pine Creek                   bacteria                                 Assessment
  0203A     Big Mineral Creek            bacteria                                 Assessment
  0207A     Buck Creek                   bacteria                                 Assessment
  0211      Little Wichita River         dissolved oxygen                         Assessment
  0211      Little Wichita River         total dissolved solids                   Assessment
  0212      Lake Arrowhead               See Segment 0211                         Assessment
  0213      Lake Kickapoo                See Segment 0211                         Assessment
  0214A     Beaver Creek                 depressed dissolved oxygen               Assessment
  0218      Wichita/North Fork Wichita   selenium (chronic) in water              Assessment
            River
  0218A     Middle Fork Wichita River    selenium (chronic) in water              Assessment
  0299A     Sweetwater Creek             bacteria                                 Assessment
  0302      Wright Patman Lake           high pH                                  Assessment
  0302      Wright Patman Lake           depressed dissolved oxygen               Assessment
  0302      Wright Patman Lake           high pH                                  Assessment
  0306      Upper South Sulphur River    bacteria                                 Assessment
  0306      Upper South Sulphur River    high pH                                  Assessment
  0306      Upper South Sulphur River    depressed dissolved oxygen               Assessment
  0307      Cooper Lake                  high pH                                  Assessment
  0307      Cooper Lake                  depressed dissolved oxygen               Assessment
  0401      Caddo Lake                   low pH                                   Assessment
  0401      Caddo Lake                   mercury in largemouth bass and           Assessment
                                         freshwater drum
  0401      Caddo Lake                   depressed dissolved oxygen               Assessment
  0401A     Harrison Bayou               depressed dissolved oxygen               Assessment
  0402      Big Cypress Creek below Lake mercury in fish tissue                   Assessment
            O' the Pines
  0402      Big Cypress Creek below Lake depressed dissolved oxygen               Assessment
            O' the Pines
  0402      Big Cypress Creek below Lake low pH                                   Assessment
            O' the Pines


 184                                                      TCEQ/TSSWCB joint publication SFR-68/04
0402A      Black Cypress Bayou            depressed dissolved oxygen         Assessment
0402A      Black Cypress Bayou            mercury in fish tissue             Assessment
0402D      Lake Daingerfield              mercury in fish tissue             Assessment
0403       Lake O' the Pines              depressed dissolved oxygen         Assessment
0404       Big Cypress Creek below Lake   bacteria                           Assessment
           Bob Sandlin
0404B      Tankersley Creek               bacteria                           Assessment
0404D      Welsh Reservoir                selenium                           Assessment
0407       James' Bayou                   depressed dissolved oxygen         Assessment
0409       Little Cypress Bayou (Creek)   depressed dissolved oxygen         Assessment
0502A      Nichols Creek                  bacteria                           Assessment
0502A      Nichols Creek                  depressed dissolved oxygen         Assessment
0502A      Nichols Creek                  chronic toxicity in water          Assessment
0504       Toledo Bend Reservoir          depressed dissolved oxygen         Assessment
0504       Toledo Bend Reservoir          mercury in largemouth bass and     Assessment
                                          freshwater drum
0504C      Palo Gaucho Bayou              chronic toxicity in water          Assessment
0505       Sabine River above Toledo      bacteria                           Assessment
           Bend Reservoir
0505B      Grace Creek                    depressed dissolved oxygen         Assessment
0505B      Grace Creek                    bacteria                           Assessment
0505D      Rabbit Creek                   bacteria                           Assessment
0505E      Brandy Branch Reservoir        selenium                         Implementation
                                                                             Assessment
0505F      Martin Creek Reservoir         selenium                         Implementation
                                                                             Assessment
0505G      Wards Creek                    depressed dissolved oxygen         Assessment
0506       Sabine River below Lake        bacteria                           Assessment
           Tawakoni
0507       Lake Tawakoni                  depressed dissolved oxygen         Assessment
0507A      Cowleech Fork Sabine River     bacteria                           Assessment
0507B      Long Branch                    bacteria                           Assessment
0508       Adams Bayou Tidal              bacteria                           Assessment
0508       Adams Bayou Tidal              depressed dissolved oxygen         Assessment
0508A      Adams Bayou above Tidal        bacteria                           Assessment
0508B      Gum Gully                      depressed dissolved oxygen         Assessment
0508B      Gum Gully                      bacteria                           Assessment
0508C      Hudson Gully                   bacteria                           Assessment
0508C      Hudson Gully                   depressed dissolved oxygen         Assessment
0511       Cow Bayou Tidal                bacteria                           Assessment
0511A      Cow Bayou above Tidal          depressed dissolved oxygen         Assessment
0511B      Coon Bayou                     depressed dissolved oxygen         Assessment
0511B      Coon Bayou                     bacteria                           Assessment
0511C      Cole Creek                     bacteria                           Assessment
0511C      Cole Creek                     depressed dissolved oxygen         Assessment
0511E      Terry Gully                    bacteria                           Assessment
0512A      Running Creek                  bacteria                           Assessment
0512B      Elm Creek                      bacteria                           Assessment
0603       B. A. Steinhagen Lake          mercury in white and hybrid        Assessment
                                          white/striped bass
0603A      Sandy Creek                    bacteria                           Assessment
0604       Neches River below Lake        lead (chronic) in water            Assessment
           Palestine
0604A      Cedar Creek                    bacteria                           Assessment

TCEQ/TSSWCB joint publication SFR-68/04                                                185
0604B   Hurricane Creek                 bacteria                                  Assessment
0605A   Kickapoo Creek                  bacteria                                  Assessment
0606    Neches River above Lake         low pH                                    Assessment
        Palestine
0606    Neches River above Lake         zinc (acute) in water                     Assessment
        Palestine
0606    Neches River above Lake         zinc (chronic) in water                   Assessment
        Palestine
0606A   Prairie Creek                   bacteria                                  Assessment
0607A   Boggy Creek                     depressed dissolved oxygen                Assessment
0607B   Little Pine Island Bayou        depressed dissolved oxygen                Assessment
0608A   Beech Creek                     depressed dissolved oxygen                Assessment
0608B   Big Sandy Creek                 bacteria                                  Assessment
0608C   Cypress Creek                   depressed dissolved oxygen                Assessment
0608F   Turkey Creek                    bacteria                                  Assessment
0608G   Lake Kimball                    mercury in fish tissue                    Assessment
0610    Sam Rayburn Reservoir           mercury in largemouth bass and            Assessment
                                        freshwater drum
0610    Sam Rayburn Reservoir           depressed dissolved oxygen                Assessment
0610A   Ayish Bayou                     bacteria                                  Assessment
0611    Angelina River above Sam        bacteria                                  Assessment
        Rayburn Reservoir
0611A   East Fork Angelina River        bacteria                                  Assessment
0611A   East Fork Angelina River        lead (chronic) in water                   Assessment
0611A   East Fork Angelina River        lead in water                             Assessment
0611B   La Nana Bayou                   bacteria                                  Assessment
0611C   Mud Creek                       bacteria                                  Assessment
0612B   Waffelow Creek                  bacteria                                  Assessment
0615    Angelina River/Sam Rayburn      mercury in largemouth bass and            Assessment
        Reservoir                       freshwater drum
0615    Angelina River/Sam Rayburn      impaired fish community                   Assessment
        Reservoir
0615    Angelina River/Sam Rayburn      depressed dissolved oxygen                Assessment
        Reservoir
0701    Taylor Bayou above Tidal        depressed dissolved oxygen                Assessment
0702A   Alligator Bayou                 ambient toxicity in water                 Assessment
0702A   Alligator Bayou                 ambient toxicity in sediment              Assessment
0702A   Alligator Bayou                 impaired fish community                   Assessment
0704    Hillebrandt Bayou               depressed dissolved oxygen                Assessment
0803    Lake Livingston                 depressed dissolved oxygen                Assessment
0803    Lake Livingston                 high pH                                   Assessment
0805    Upper Trinity River             chlordane in tissue                     Implementation
0805    Upper Trinity River             bacteria                                  Assessment
0805    Upper Trinity River             PCBs in fish tissue                       Assessment
0806    West Fork Trinity River below   bacteria                                  Assessment
        Lake Worth
0806    West Fork Trinity River below   PCBs in fish tissue                       Assessment
        Lake Worth
0806    West Fork Trinity below Lake    chlordane in tissue                     Implementation
        Worth
0806A   Fosdic Lake                     chlordane in tissue                     Implementation
0806A   Fosdic Lake                     DDE in tissue                           Implementation
0806A   Fosdic Lake                     dieldrin in tissue                      Implementation
0806A   Fosdic Lake                     PCBs in tissue                          Implementation


186                                                       TCEQ/TSSWCB joint publication SFR-68/04
0806B      Echo Lake                        PCBs in tissue                      Implementation
0820C      Muddy Creek                      bacteria                              Assessment
0823       Lewisville Lake                  dissolved oxygen                    Implementation
           City of Denton                                                         Assessment
0823A      Little Elm Creek                 bacteria                              Assessment
0824       Elm Fork Trinity River           bacteria                              Assessment
           above Ray Roberts Lake
0829       Clear Fork Trinity River below   PCBs in fish tissue                  Assessment
           Benbrook Lake
0829       Clear Fork Trinity below         chlordane in tissue                 Implementation
           Benbrook Lake
0829A      Lake Como                        chlordane in tissue                 Implementation
0829A      Lake Como                        DDE in tissue                       Implementation
0829A      Lake Como                        dieldrin in tissue                  Implementation
0829A      Lake Como                        PCBs in tissue                      Implementation
0841       Lower West Fork Trinity River    PCBs in fish tissue                   Assessment
0841       Lower West Fork Trinity River    bacteria                              Assessment
0841       Lower West Fork Trinity          chlordane in tissue                 Implementation
0841A      Mountain Creek Lake              chlordane in tissue                 Implementation
0841A      Mountain Creek Lake              DDD in tissue                       Implementation
0841A      Mountain Creek Lake              DDE in tissue                       Implementation
0841A      Mountain Creek Lake              DDT in tissue                       Implementation
0841A      Mountain Creek Lake              dieldrin in tissue                  Implementation
0841A      Mountain Creek Lake              heptachlor epoxide in fish tissue   Implementation
0841A      Mountain Creek Lake              PCBs in tissue                      Implementation
1001       Houston Ship Channel             nickel                              Implementation
                                                                                  Assessment
1005       Houston Ship Channel / San       nickel                              Implementation
           Jacinto River Tidal
1005       Houston Ship Channel/            dioxin in catfish and crab tissue    Assessment
           San Jacinto River Tidal
1006       Houston Ship Channel Tidal       nickel                              Implementation
1006       Houston Ship Channel Tidal       PCBs in fish tissue                   Assessment
1006       Houston Ship Channel Tidal       dioxin in catfish and crab tissue     Assessment
1006       Houston Ship Channel Tidal       pesticides in fish tissue             Assessment
1006       Houston Ship Channel Tidal       temperature                           Assessment
1006       Houston Ship Channel Tidal       chronic toxicity in sediment          Assessment
1006D      Halls Bayou below US 59          bacteria                              Assessment
1006E      Halls Bayou above US 59          bacteria                              Assessment
1006F      Big Gulch above Tidal            bacteria                              Assessment
1006H      Spring Gully above Tidal         bacteria                              Assessment
1006I      Unnamed Tributary of Halls       bacteria                              Assessment
           Bayou
1006J      Unnamed Tributary of Halls       bacteria                             Assessment
           Bayou
1007       Houston Ship Channel/Buffalo     nickel                              Implementation
           Bayou Tidal                                                            Assessment
1007       Houston Ship Channel/Buffalo     PCBs in fish tissue                   Assessment
           Bayou Tidal
1007       Houston Ship Channel/Buffalo     pesticides in fish tissue            Assessment
           Bayou Tidal

1007       Houston Ship Channel/Buffalo                                          Assessment
           Bayou Tidal                  acute toxicity in sediment


TCEQ/TSSWCB joint publication SFR-68/04                                                    187
1007    Houston Ship Channel/Buffalo   dioxin in catfish and crab tissue         Assessment
        Bayou Tidal
1007B   Brays Bayou above Tidal        bacteria                                  Assessment
1007C   Keegans Bayou above Tidal      bacteria                                  Assessment
1007D   Sims Bayou above Tidal         bacteria                                  Assessment
1007E   Willow Waterhole Bayou above   bacteria                                  Assessment
        Tidal
1007F   Berry Bayou above Tidal        bacteria                                  Assessment
1007G   Kuhlman Gully above Tidal      bacteria                                  Assessment
1007H   Pine Gully above Tidal         depressed dissolved oxygen                Assessment
1007H   Pine Gully above Tidal         bacteria                                  Assessment
1007I   Plum Creek above Tidal         depressed dissolved oxygen                Assessment
1007I   Plum Creek above Tidal         bacteria                                  Assessment
1007K   Country Club Bayou above       depressed dissolved oxygen                Assessment
        Tidal
1007K   Country Club Bayou above       bacteria                                  Assessment
        Tidal
1007L   Unnamed Non-Tidal Tributary    bacteria                                  Assessment
        of Brays Bayou
1007M   Unnamed Non-Tidal Tributary    bacteria                                  Assessment
        of Hunting Bayou
1007N   Unnamed Non-Tidal Tributary    bacteria                                  Assessment
        of Sims Bayou
1007O   Unnamed Non-Tidal Tributary    bacteria                                  Assessment
        of Buffalo Bayou
1007O   Unnamed Non-Tidal Tributary    depressed dissolved oxygen                Assessment
        of Buffalo Bayou
1007P   Brays Bayou above Tidal        bacteria                                  Assessment
1007Q   Sims Bayou above Tidal         depressed dissolved oxygen                Assessment
1007Q   Sims Bayou above Tidal         bacteria                                  Assessment
1007R   Hunting Bayou above Tidal      bacteria                                  Assessment
1007R   Hunting Bayou above Tidal      depressed dissolved oxygen                Assessment
1008    Spring Creek                   bacteria                                  Assessment
1009    Cypress Creek                  bacteria                                  Assessment
1013    Buffalo Bayou Tidal            bacteria                                  Assessment
1013    Buffalo Bayou Tidal            nickel                                    Assessment
                                                                               Implementation
1013A   Little White Oak Bayou         depressed dissolved oxygen                Assessment
1013A   Little White Oak Bayou         bacteria                                  Assessment
1013C   Unnamed Non-Tidal Tributary    bacteria                                  Assessment
        of Buffalo Bayou Tidal
1014    Buffalo Bayou above Tidal      bacteria                                  Assessment
1014    Buffalo Bayou above Tidal      nickel                                    Assessment
                                                                               Implementation
1014H   South Mayde Creek              bacteria                                  Assessment
1014K   Turkey Creek                   bacteria                                  Assessment
1014M   Neimans Bayou                  bacteria                                  Assessment
1014M   Neimans Bayou                  depressed dissolved oxygen                Assessment
1014N   Rummel Creek                   bacteria                                  Assessment
1014O   Spring Branch                  bacteria                                  Assessment
1016    Greens Bayou above Tidal       bacteria                                  Assessment

1016    Greens Bayou above Tidal       nickel                                    Assessment
                                                                               Implementation
1016A   Garners Bayou                  bacteria                                  Assessment


188                                                      TCEQ/TSSWCB joint publication SFR-68/04
1016B      Unnamed Tributary of Greens    bacteria                                  Assessment
           Bayou
1016C      Unnamed Tributary of Greens    bacteria                                  Assessment
           Bayou
1016D      Unnamed Tributary of Greens    bacteria                                  Assessment
           Bayou
1016D      Unnamed Tributary of Greens    depressed dissolved oxygen                Assessment
           Bayou
1017       Whiteoak Bayou above Tidal     nickel                                     Assessment
                                                                                   Implementation
1017       Whiteoak Bayou above Tidal     bacteria                                   Assessment
1017A      Brickhouse Gully/Bayou         bacteria                                   Assessment
1017B      Cole Creek                     bacteria                                   Assessment
1017D      Unnamed Tributary of White     depressed dissolved oxygen                 Assessment
           Oak Bayou
1017D      Unnamed Tributary of White     bacteria                                  Assessment
           Oak Bayou
1017E      Unnamed Tributary of White     bacteria                                  Assessment
           Oak Bayou
1101       Clear Creek Tidal              chlordane in tissue                      Implementation
1101       Clear Creek Tidal              bacteria                                 Implementation
1101       Clear Creek Tidal              dichloroethane in fish and crab tissue   Implementation
1101       Clear Creek Tidal              trichloroethane in tissue                Implementation
1101B      Chigger Creek                  bacteria                                 Implementation
1102       Clear Creek above Tidal        chlordane in tissue                      Implementation
1102       Clear Creek above Tidal        dichloroethane in fish and crab tissue   Implementation
1102       Clear Creek above Tidal        bacteria                                 Implementation
1102       Clear Creek above Tidal        trichloroethane in tissue                Implementation
1102A      Cowart Creek                   bacteria                                   Assessment
1102B      Mary's Creek/ North Fork       bacteria                                   Assessment
           Mary's Creek
1103       Dickinson Bayou Tidal          bacteria                                  Assessment
1103       Dickinson Bayou Tidal          depressed dissolved oxygen                Assessment
1103A      Bensons Bayou                  bacteria                                  Assessment
1103B      Bordens Gully                  bacteria                                  Assessment
1103C      Geisler Bayou                  bacteria                                  Assessment
1103D      Gum Bayou                      bacteria                                  Assessment
1104       Dickinson Bayou local          bacteria                                  Assessment
           Initiative Watershed Plan
1113       Armand Bayou above Tidal       dissolved oxygen                         Implementation
                                                                                     Assessment
1113A      Armand Bayou above Tidal       bacteria                                   Assessment
1202H      Allen's Creek                  bacteria                                   Assessment
1202J      Big Creek                      bacteria                                   Assessment
1205       Lake Granbury                  bacteria                                 Implementation
                                                                                     Assessment
1209       Navasota River below           bacteria                                   Assessment
           Lake Limestone
1209C      Carters Creek                  bacteria                                  Assessment
1209G      Cedar Creek                    bacteria                                  Assessment
1209I      Gibbons Creek                  bacteria                                  Assessment
1209I      Gibbons Creek                  depressed dissolved oxygen                Assessment
1209J      Shepherd Creek                 bacteria                                  Assessment
1209K      Steele Creek                   bacteria                                  Assessment
1210A      Navasota River above           bacteria                                  Assessment


TCEQ/TSSWCB joint publication SFR-68/04                                                       189
        Lake Mexia
1211A   Davidson Creek                  bacteria                                   Assessment
1212    Somerville Lake                 low and high pH                            Assessment
1212B   East Yegua Creek                bacteria                                   Assessment
1214    Colorado River                  choloride                                  Assessment
1214    Colorado River                  sulfate                                    Assessment
1214    Colorado River                  total dissolved solids                     Assessment
1217    Lampasas River above            bacteria                                   Assessment
        Stillhouse Hollow Lake
1217A   Rocky Creek                     depressed dissolved oxygen                 Assessment
1218    Nolan Creek/ South Nolan        bacteria                                   Assessment
        Creek
1221    Leon River Below Proctor Lake   bacteria                                   Assessment
1222    Proctor Lake                    depressed dissolved oxygen                 Assessment
1222A   Duncan Creek                    bacteria                                   Assessment
1226    North Bosque River              orthophosphorus                          Implementation
1226B   Green Creek                     bacteria                                   Assessment
1226E   Indian Creek                    bacteria                                   Assessment
1226F   Sims Creek                      bacteria                                   Assessment
1227    Nolan River                     bacteria                                   Assessment
1242    Brazos River above              bacteria                                   Assessment
        Navasota River
1242D   Thompson Creek                  bacteria                                   Assessment
1242D   Thompson Creek                  depressed dissolved oxygen                 Assessment
1242I   Campbells Creek                 bacteria                                   Assessment
1242K   Mud Creek                       bacteria                                   Assessment
1242L   Pin Oak Creek                   bacteria                                   Assessment
1242M   Spring Creek                    bacteria                                   Assessment
1242N   Tehuacana Creek                 bacteria                                   Assessment
1242P   Big Creek                       bacteria                                   Assessment
1243    Salado Creek                    depressed dissolved oxygen                 Assessment
1245    Upper Oyster Creek              depressed dissolved oxygen                 Assessment
1245    Upper Oyster Creek              bacteria                                   Assessment
1246E   Wasp Creek                      bacteria                                   Assessment
1247    Lake Granger Watershed Plan     sediment                                   Assessment
                                                                                 Implementation
1247A   Willis Creek                    bacteria                                   Assessment
1248    San Gabriel/North Fork San      total dissolved solids                     Assessment
        Gabriel River
1254    Aquilla Reservoir               atrazine in finished drinking water        Assessment
1254    Aquilla Reservoir               atrazine in finished drinking water      Implementation
1255    Upper North BosqueRiver         orthophosphorus                          Implementation
1255A   Goose Branch                    bacteria                                   Assessment
1255B   North Fork Upper North          bacteria                                   Assessment
        Bosque River
1255C   Scarborough Creek               bacteria                                   Assessment
1255D   South Fork North Bosque River   bacteria                                   Assessment
1255E   Unnamed tributary of Goose      bacteria                                   Assessment
        Branch
1255F   Unnamed tributary of            bacteria                                   Assessment
        Scarborough Creek
1255G   Woodhollow Branch               bacteria                                   Assessment
1302    San Bernard River above Tidal   bacteria                                   Assessment
1305    Caney Creek above Tidal         bacteria                                   Assessment


190                                                        TCEQ/TSSWCB joint publication SFR-68/04
1403       Lake Austin                     dissolved oxygen                  Implementation
1403A      Bull Creek                      impaired macrobenthos community     Assessment
1403J      Spicewood Tributary to Shoal    bacteria                            Assessment
           Creek
1403K      Taylor Slough South             bacteria                            Assessment
1411       E.V. Spence Reservoir           sulfate                           Implementation
1411       E.V. Spence Reservoir           total dissolved solids            Implementation
1411       E.V. Spence Reservoir           total dissolved solids              Assessment
1420       Pecan Bayou above Lake          depressed dissolved oxygen          Assessment
           Brownwood
1421       Concho River                    impaired macrobenthos community   Implementation
                                                                               Assessment
1422       Lake Nasworthy                  See Segments 1421 & 1425          Implementation
                                                                               Assessment
1423       Twin Buttes Reservoir           See Segments 1421 & 1425          Implementation
                                                                               Assessment
1424       Middle Concho/South Concho See Segments 1421 & 1425               Implementation
           River                                                               Assessment
1425       O.C. Fisher Lake           total dissolved solids                 Implementation
                                                                               Assessment
1425       O.C. Fisher Lake                chloride                          Implementation
                                                                               Assessment
1426       Colorado River below E. V.      chloride                            Assessment
           Spence Reservoir
1426       Colorado River below E. V.      total dissolved solids              Assessment
           Spence Reservoir
1427       Onion Creek                     depressed dissolved oxygen          Assessment
1427A      Slaughter Creek                 impaired macrobenthos community     Assessment
1428C      Gilleland Creek                 bacteria                          Implementation
1429B      Eanes Creek                     bacteria                            Assessment
1429C      Waller Creek                    impaired macrobenthos community     Assessment
1604       Lake Texana                     depressed dissolved oxygen          Assessment
1801       Guadalupe River Tidal           depressed dissolved oxygen          Assessment
1803A      Elm Creek                       bacteria                            Assessment
1803B      Sandies Creek                   bacteria                            Assessment
1803C      Peach Creek                     bacteria                            Assessment
1806       Guadalupe River above           bacteria                            Assessment
           Canyon Lake
1806A      Camp MeetingCreek               depressed dissolved oxygen          Assessment
1901       Lower San Antonio River         bacteria                            Assessment
1906       Lower Leon Creek                bacteria                            Assessment
1906       Lower Leon Creek                depressed dissolved oxygen          Assessment
1908       Upper Cibolo Creek              depressed dissolved oxygen          Assessment
1910       Salado Creek                    dissolved oxygen                  Implementation
1910       Salado Creek                    bacteria                            Assessment
1910       Salado Creek                    depressed dissolved oxygen          Assessment
1910A      Walzem Creek                    bacteria                            Assessment
1911       Upper San Antonio River         bacteria                          Implementation
                                                                               Assessment
1913       Mid Cibolo Creek                depressed dissolved oxygen          Assessment
2104       Nueces River above Frio River   depressed dissolved oxygen          Assessment
2107       Atascosa River                  bacteria                            Assessment
2110       Lower Sabinal River             nitrate+nitrite nitrogen            Assessment
2113       Upper Frio River                depressed dissolved oxygen          Assessment



TCEQ/TSSWCB joint publication SFR-68/04                                                  191
2116    Choke Canyon Reservoir        total dissolved solids                     Assessment
2116    Choke Canyon Reservoir        bacteria                                   Assessment
2117    Frio River above Choke        bacteria                                   Assessment
        Canyon Reservoir
2117    Frio River Above Choke        depressed dissolved oxygen                 Assessment
        Canyon Reservoir
2201    Arroyo Colorado Tidal         depressed dissolved oxygen               Implementation
                                                                                 Assessment
2201    Arroyo Colorado Tidal         ambient toxicity in sediment               Assessment
2202    Arroyo Colorado above Tidal   organic compounds in fish tissue           Assessment
2202    Arroyo Colorado above Tidal   chlordane in tissue                      Implementation
2201    Arroyo Colorado               depressed dissolved oxygen               Implementation
                                                                                 Assessment
2202    Arroyo Colorado above Tidal   DDE in tissue                            Implementation
2202    Arroyo Colorado above Tidal   other organic compounds in tissue        Implementation
2202    Arroyo Colorado above Tidal   toxaphene in tissue                      Implementation
2202A   Donna Reservoir               PCBs in tissue                           Implementation
2304    Rio Grande below Amistad      ambient toxicity in water                  Assessment
        Reservoir
2306    Rio Grande above Amistad      ambient toxicity in water                  Assessment
        Reservoir
2306    Rio Grande above Amistad      bacteria                                   Assessment
        Reservoir
2307    Rio Grande below Riverside    bacteria                                   Assessment
        Diversion Dam
2310    Lower Pecos River             chloride                                 Implementation
                                                                                 Assessment
2310    Lower Pecos River             sulfate                                  Implementation
                                                                                 Assessment
2310    Lower Pecos River             total dissolved solids                   Implementation
                                                                                 Assessment
2311    Upper Pecos River             See Segment 2310                         Implementation
                                                                                 Assessment
2314    Rio Grande above              bacteria                                   Assessment
        International Dam
2421    Upper Galveston Bay           bacteria (oyster waters)                   Assessment
2421    Upper Galveston Bay           dioxin in catfish and crab tissue          Assessment
2422    Trinity Bay                   bacteria (oyster waters)                   Assessment
2423    East Bay                      bacteria (oyster waters)                   Assessment
2424    West Bay                      bacteria (oyster waters)                   Assessment
2424A   Highland Bayou                bacteria                                   Assessment
2424A   Highland Bayou                depressed dissolved oxygen                 Assessment
2424C   Marchand Bayou                depressed dissolved oxygen                 Assessment
2424C   Marchand Bayou                bacteria                                   Assessment
2425    Robinson Bayou                bacteria                                 Implementation
2425B   Jarbo Bayou                   bacteria                                   Assessment
2425C   Robinson Bayou                bacteria                                   Assessment
2426    Tabbs Bay                     nickel                                   Implementation
                                                                                 Assessment
2426    Tabbs Bay                     bacteria                                   Assessment
2426    Tabbs Bay                     dioxin                                     Assessment
2427    San Jacinto Bay               dioxin                                     Assessment
2428    Black Duck Bay                dioxin                                     Assessment
2428    Black Duck Bay                nickel                                     Assessment
                                                                               Implementation


192                                                      TCEQ/TSSWCB joint publication SFR-68/04
2429       Scott Bay                      bacteria                                 Assessment
2429       Scott Bay                      dioxin                                   Assessment
2429       Scott Bay                      nickel                                   Assessment
                                                                                 Implementation
2430       Burnett Bay                    dioxin                                   Assessment
2430       Burnett Bay                    nickel                                   Assessment
                                                                                 Implementation
2432       Chocolate Bay                  bacteria (oyster waters)                 Assessment
2436       Barbours Cut                   dioxin                                   Assessment
2436       Barbours Cut                   nickel                                   Assessment
                                                                                 Implementation
3438       Bayport Channel                dioxin                                   Assessment
2439       Lower Galveston Bay            bacteria (oyster waters)                 Assessment
2441       East Matagorda Bay             bacteria (oyster waters)                 Assessment
2442       Cedar Lakes                    bacteria (oyster waters)                 Assessment
2451       Matagorda Bay/Powderhorn       bacteria (oyster waters)                 Assessment
           Lake
2451       Matagorda Bay/Powderhorn       depressed dissolved oxygen              Assessment
           Lake
2452       Tres Palacios Bay/Turtle Bay   bacteria (oyster waters)                Assessment
2452       Tres Palacios Bay/Turtle Bay   depressed dissolved oxygen              Assessment
2453       Lavaca Bay/Chocolate Bay       depressed dissolved oxygen              Assessment
2453       Lavaca Bay/Chocolate Bay       mercury in water                        Assessment
2453       Lavaca Bay/Chocolate Bay       bacteria (oyster waters)                Assessment
2453       Lavaca Bay/Chocolate Bay       mercury in fish and crab tissue         Assessment
2456       Carancahua Bay                 high pH                                 Assessment
2456       Carancahua Bay                 depressed dissolved oxygen              Assessment
2456       Carancahua Bay                 bacteria (oyster waters)                Assessment
2462       San Antonio Bay/Hynes          bacteria (oyster waters)                Assessment
           Bay/Guadalupe Bay
2472       Copano Bay/Port Bay/Mission    bacteria (oyster waters)                Assessment
           Bay
2482       Nueces Bay                     zinc in oyster tissue                    Assessment
2482       Nueces Bay                     selenium                                 Assessment
2483A      Oso Creek                      depressed dissolved oxygen               Assessment
2485       Oso Bay                        depressed dissolved oxygen             Implementation
                                                                                   Assessment
2491       Laguna Madre                   depressed dissolved oxygen               Assessment
2501       Gulf of Mexico                 mercury in king mackerel > 43 inches     Assessment
2501       Gulf of Mexico                 depressed dissolved oxygen               Assessment




TCEQ/TSSWCB joint publication SFR-68/04                                                     193
Groundwater
Table B.2 Priority Water Bodies - Groundwater

            Aquifer                   Region            Constituent(s) of Concern      Implementation or
                                                                                         Assessment?

 Edward (BFZ)                Central Texas              Vulnerability                 Implementation
                                                                                      Assessment

 Cenezoic Pecos Alluvium     West Texas                 Nitrate, Chloride, Sulfate,   Assessment
                                                        and TDS

 Edwards Trinity (Plateau)   Terrell, Reagan, and       Nitrate                       Assessment
                             Crockett Counties

 Ogallala                    Southern High Plains,      Nitrate                       Assessment
                             Panhandle

 Gulf Coast                  Rio Grande Valley          Nitrate, Iron, TDS            Assessment

 Seymour                     North Central              Nitrate, Vulnerability        Assessment

 Blaine                      North Central              Nitrate, Chloride, Iron,      Assessment
                                                        Sulfate, TDS

 Lipan                       Concho, Runnels, Tom       Nitrate, Chloride, TDS        Assessment
                             Green, and Coke Counties

 Bone Spring-Victorio Peak   Far West Texas             Nitrate, Chloride,            Assessment
                                                        Fluoride, Sulfate, TDS

 Trinity                     Central Texas North -      Nitrate                       Assessment
                             Outcrop Area Only

 Dockum                      Panhandle, West Texas -    Nitrate                       Assessment
                             Outcrop Area Only

 Edwards-Trinity (High       Southern High Plains       Nitrate                       Assessment
 Plains)

 Marathon                    Big Bend Area              Nitrate                       Assessment

 Capitan Reef                West Texas                 Chloride, Dissolved           Assessment
                                                        Solids, Radioactivity

 Hickory                     Llano Uplift               Radioactivity                 Assessment

 Hueco - Mesilla             Far West Texas             Sulfate                       Assessment

 Brazos River Alluvium       Southeast Texas            Iron, Manganese               Assessment

 Rustler                     Culberson, Reeves          Iron, Sulfate, TDS,           Assessment
                             Counties                   Radioactivity




   194                                                      TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX C
OVERVIEW OF CURRENT PRIORITY WATERSHEDS,
MILESTONES, AND ESTIMATED TIMELINES
Priority Water Body Summary

The Milestone Summary Table presents an overview of estimated completion times for
milestones on Texas’ priority waterbodies. The individual tables for priority waterbodies,
which follow the Milestone Summary Table, provide similar information but in greater detail.

Milestones:

A. Stakeholder Group -Employ or develop a Local Watershed Committee to solicit input and encourage the participation
of affected stakeholders in the decision-making process.

B. Data Review -Complete the assessment of pollutant problems by reviewing existing water quality data, conducting an
inventory of point / nonpoint sources, land use data, and all known stressors influencing water quality.

C. Targeted Assessment -Complete water quality monitoring. Analyze data, assess loadings, and determine the origin and
distribution of pollutants.

D. Modeling -Develop and apply model(s) to determine numerical load allocations. Recommend control strategies for
implementation.

E. Action Plan -Develop a detailed action plan (TMDL, IP, or WPP) which establishes overall goals and objectives, load
allocations, strategy for load allocation, timetable for implementation, and a list of expected results.

F. Implementation -Implement voluntary and regulatory actions in the watershed and adjust the BMP implementation
based on follow-up verification monitoring of effectiveness.




   TCEQ/TSSWCB joint publication SFR-68/04                                                                      195
Table C.1. Milestone Summary Table
       Waterbody                     2005                2006                2007               2008            2009             2010

Assessing AquaticLife Use          Targeted             Modeling           Action Plan
in Tidal Streams                  Assessment

Aquilla Reservoir                Implementation      Implementation      Implementation     Implementation   Implementation   Implementation


Armand Bayou Local Initiative                                                                 Action Plan
Watershed Plan                   Implementation      Implementation      Implementation                      Implementation   Implementation
                                                                                            Implementation

Arroyo Colorado-D.O.                                   Action Plan       Implementation     Implementation   Implementation   Implementation
                                 Implementation
                                                     Implementation

Arroyo Colorado Legacy                                 Targeted                                                Targeted
Pollutants                       Implementation       Assessment                                              Assessment
                                                                         Implementation     Implementation                    Implementation
                                                     Implementation                                          Implementation

Brandy Branch Reservoir          Implementation      Implementation      Implementation     Implementation   Implementation   Implementation

Buck Creek                                             Targeted            Action Plan
                                 Implementation       Assessment                            Implementation   Implementation   Implementation

                                                     Implementation      Implementation

Buffalo and White Oak Bayous      Data Review                              Action Plan
                                                       Action Plan                          Implementation   Implementation   Implementation
                                   Targeted                              Implementation
                                  Assessment

Cedar Lake                                          Stakeholder Group                         Action Plan

                                 Implementation        Targeted          Implementation     Implementation   Implementation   Implementation
                                                      Assessment

                                                        Modeling

                                Stakeholder Group      Targeted            Action Plan
City of Denton Watershed Plan                         Assessment                            Implementation   Implementation   Implementation
(Hickory Creek)
                                  Data Review        Implementation      Implementation



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        Waterbody                    2005                2006              2007             2008             2009             2010

Clear Creek Legacy and VOC         Targeted            Targeted           Targeted         Targeted         Targeted         Targeted
Pollutants                        Assessment          Assessment         Assessment       Assessment       Assessment       Assessment

                                 Implementation      Implementation     Implementation   Implementation   Implementation   Implementation

Clear Creek Watershed                                                                      Targeted
                                 Implementation      Implementation     Implementation    Assessment      Implementation   Implementation

                                                                                         Implementation

Clear Fork of the Trinity                              Action Plan

Coastal Bend Bays Plan           Implementation      Implementation     Implementation   Implementation   Implementation   Implementation

Colorado and San Gabriel            Modeling                             Action Plan
Rivers, Brushy and Petronilla                        Implementation                      Implementation   Implementation   Implementation
Creeks                           Implementation                         Implementation

Concho River Basin              Stakeholder Group      Targeted          Action Plan
                                                      Assessment                         Implementation   Implementation   Implementation

                                  Data Review        Implementation     Implementation

Copano Bay Oysters                                  Stakeholder Group
                                                                        Implementation   Implementation   Implementation   Implementation
                                 Implementation         Modeling

                                                       Action Plan

                                                     Implementation

Dallas Legacy Pollutants           Targeted            Targeted           Targeted         Targeted         Targeted         Targeted
                                  Assessment          Assessment         Assessment       Assessment       Assessment       Assessment

                                 Implementation      Implementation     Implementation   Implementation   Implementation   Implementation

Dickinson Bayou                                        Action Plan      Implementation   Implementation   Implementation   Implementation
                                    Modeling
                                                     Implementation




     TCEQ/TSSWCB joint publication SFR-68/04                                                197
       Waterbody                    2005                2006                2007               2008            2009             2010

E.V. Spence                     Implementation      Implementation      Implementation     Implementation   Implementation   Implementation


Fort Worth Legacy Pollutants      Targeted            Targeted             Targeted           Targeted        Targeted         Targeted
                                 Assessment          Assessment           Assessment         Assessment      Assessment       Assessment

                                Implementation      Implementation      Implementation     Implementation   Implementation   Implementation

Galveston Bay Plan              Implementation      Implementation      Implementation     Implementation   Implementation   Implementation

Gilliand Creek                                     Stakeholder Group      Action Plan
                                Implementation                                             Implementation   Implementation   Implementation
                                                       Modeling         Implementation

                                                    Implementation

Guadalupe above Canyon                             Stakeholder Group      Action Plan

                                Implementation         Modeling         Implementation     Implementation   Implementation   Implementation
                                                    Implementation

Gulf Coast Oyster Waters          Action Plan
                                                    Implementation      Implementation     Implementation   Implementation   Implementation
                                Implementation

Houston Ship Channel               Modeling            Modeling           Action Plan        Action Plan
Dioxin Study                                                                                                Implementation   Implementation
                                Implementation      Implementation      Implementation     Implementation

Houston Ship Channel            Implementation      Implementation      Implementation     Implementation   Implementation   Implementation
Nickel Study

Lake Austin                     Implementation      Implementation      Implementation     Implementation   Implementation   Implementation


Lake Granbury                  Stakeholder Group      Targeted            Action Plan
                                                     Assessment                            Implementation   Implementation   Implementation

                                 Data Review        Implementation      Implementation


    198                                                      TCEQ/TSSWCB joint publication SFR-68/04
        Waterbody                  2005                2006              2007             2008             2009             2010

Lake Granger Watershed Plan   Stakeholder Group   Stakeholder Group     Targeted        Action Plan
                                                                       Assessment                       Implementation   Implementation

                                Implementation     Implementation     Implementation   Implementation

                                 Action Plan
                                                   Implementation     Implementation   Implementation   Implementation   Implementation
Lake ‘O the Pines               Implementation

                                Implementation     Implementation     Implementation   Implementation   Implementation   Implementation
Lavaca and Chocolate Bays

Little Wichita                Stakeholder Group      Targeted          Action Plan
                                                    Assessment                         Implementation   Implementation   Implementation

                                 Data Review       Implementation     Implementation

Martin Creek Reservoir          Implementation     Implementation     Implementation   Implementation   Implementation   Implementation


Matagorda Bay /                                   Stakeholder Group    Action Plan
Tres Palacios Bay               Implementation
                                                      Modeling        Implementation   Implementation   Implementation   Implementation
                                                   Implementation

                                  Modeling
Middle Brazos River Basin                          Implementation     Implementation   Implementation   Implementation   Implementation
                                 Action Plan

North Bosque River              Implementation     Implementation     Implementation   Implementation   Implementation   Implementation


Nueces Bay Zinc Project                              Action Plan       Action Plan
                                Implementation                                         Implementation   Implementation   Implementation
                                                   Implementation     Implementation

Orange County                     Modeling           Action Plan
                                                                      Implementation   Implementation   Implementation   Implementation
                                Implementation     Implementation




     TCEQ/TSSWCB joint publication SFR-68/04                                              199
       Waterbody                     2005                2006                2007               2008            2009             2010

Oso Bay                            Targeted             Modeling           Action Plan
                                  Assessment                                                Implementation   Implementation   Implementation

                                    Modeling           Action Plan       Implementation

                                                    Stakeholder Group      Action Plan
Oso Creek and Oso Bay
                                                      Data Review
                                 Implementation                          Implementation     Implementation   Implementation   Implementation
                                                       Targeted
                                                      Assessment

                                                        Modeling

Pecos Watershed Plan            Stakeholder Group      Targeted            Action Plan
                                                      Assessment                            Implementation   Implementation   Implementation

                                  Data Review        Implementation      Implementation

Sabinal River                                       Stakeholder Group                         Action Plan

                                 Implementation        Targeted          Implementation     Implementation   Implementation   Implementation
                                                      Assessment

                                                        Modeling

Salado Creek                     Implementation      Implementation      Implementation     Implementation   Implementation   Implementation

San Antonio River Authority     Stakeholder Group      Targeted            Action Plan
                                                      Assessment                            Implementation   Implementation   Implementation

                                  Data Review        Implementation      Implementation

San Antonio River Basin, Leon       Modeling            Modeling           Action Plan
River, and Peach Creek                                                                      Implementation   Implementation   Implementation
                                 Implementation      Implementation      Implementation

South Central Texas                 Modeling
                                                     Implementation      Implementation     Implementation   Implementation   Implementation
                                   Action Plan



    200                                                       TCEQ/TSSWCB joint publication SFR-68/04
        Waterbody                      2005                2006              2007             2008             2009             2010

Tarrant Regional Water District   Stakeholder Group      Targeted           Targeted         Targeted         Targeted         Targeted
Watershed Plans                                         Assessment         Assessment       Assessment       Assessment       Assessment

                                    Data Review                            Action Plan

                                     Targeted
                                    Assessment         Implementation     Implementation   Implementation   Implementation   Implementation
                                      Modeling

                                   Implementation

Trinity River                                         Stakeholder Group    Action Plan
                                   Implementation                                          Implementation   Implementation   Implementation
                                                          Modeling        Implementation

Upper Oyster Creek                   Targeted            Targeted          Action Plan
                                    Assessment          Assessment                         Implementation   Implementation   Implementation

                                      Modeling            Modeling        Implementation

Welsh Reservoir                                        Implementation     Implementation   Implementation   Implementation   Implementation




     TCEQ/TSSWCB joint publication SFR-68/04                                                  201
Table C.2. Individual Priority Waterbody Tables

Armand Bayou Local Initiative Watershed Plan-dissolved oxygen
Segment 1113

               Milestones                      completed      2005   2006      2007        2008      2009       2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage      (1997)
 the participation of affected stakeholders
 in the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of      (1997)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.            (1999)-no
 Analyze data, assess loadings, and            aquatic life
 determine the origin and distribution of      impairment
 pollutants.                                   found


 Develop and apply model(s) to determine
 numerical load allocations. Recommend
 control strategies for implementation.

 Develop A detailed action plan (TMDL,                                                  projected
 IP, or WPP) which establishes overall                                                  completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                       X      X         X           X         X          X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




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Assessing Aquatic Life Use in Tidal Streams -dissolved oxygen
Segments 0511, 1501, 2453A

              Milestones                     completed   2005     2006      2007   2008   2009    2010


 Employ or develop a Local Watershed
 Committee to solicit input and
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of    (2004)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and                       X
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to                                  UAA
 determine numerical load allocations.                           to be
 Recommend control strategies for                               developed
 implementation.

 Develop A detailed action plan (TMDL,
 IP, or WPP) which establishes overall
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the
 BMP implementation based on follow-up                              X        X      X      X       X
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                     203
Aquilla Reservoir -Atrazine
Segment 1254

                Milestones                       completed    2005   2006     2007     2008     2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (1998)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (1998)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2000)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           omitted
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,       TMDL -
 or WPP) which establishes overall goals         (2002)
 and objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         WQS met -     X      X        X        X         X        X
 BMP implementation based on follow-up           routine
 verification monitoring of effectiveness.       monitoring
                                                 continues




     204                                                             TCEQ/TSSWCB joint publication SFR-68/04
Arroyo Colorado -dissolved oxygen
Segment 2201

                 Milestones                      completed      2005   2006   2007   2008   2009    2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (1998)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (1998)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2000)          X      X      X
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           Standards
 control strategies for implementation.          unattainable

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                                    X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         (2000)          X      X      X      X      X       X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                       205
Arroyo Colorado Legacy Pollutants -DDE, DDT, DDD, Dieldrin, Endrin, Lindane,
Hexachlorobenzene, Heptachlor, Heptachlor Epoxide, Chlordane, Toxaphene, PCBs
Segments 2201, 2202, 2202A

              Milestones                      completed      2005    2006      2007     2008     2009      2010

Employ or develop a Local Watershed
Committee to solicit input and encourage      (1998)
the participation of affected stakeholders
in the decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water
quality data, conducting an inventory of      (1998)
point / nonpoint sources, land use data,
and all known stressors influencing
water quality.

Complete water quality monitoring.                                   tissue                      tissue
Analyze data, assess loadings, and            (1999)                samples                     samples
determine the origin and distribution of
pollutants.

Develop and apply model(s) to
determine numerical load allocations.         (1999)
Recommend control strategies for
implementation.

Develop A detailed action plan (TMDL,         TMDL -
IP, or WPP) which establishes overall         (2001)
goals and objectives, load allocations,       revised-2003
strategy for load allocation, timetable for
implementation, and a list of expected
results.

Implement voluntary and regulatory
actions in the watershed and adjust the       (1998)          X        X        X         X        X         X
BMP implementation based on follow-up
verification monitoring of effectiveness.




    206                                                                TCEQ/TSSWCB joint publication SFR-68/04
Brandy Branch Reservoir -selenium
Segment 0505E

                Milestones                       completed     2005      2006   2007   2008   2009    2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2001)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2001)
 point / nonpoint sources, land use data,
 and all known stressors influencing water
 quality.

 Complete water quality monitoring.              advisory
 Analyze data, assess loadings, and              rescinded
 determine the origin and distribution of        (2004)
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,                   proposed
 or WPP) which establishes overall goals                     delisting
 and objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                         X        X      X      X      X       X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                         207
Buck Creek -bacteria
Segments 0207A

                 Milestones                       completed   2005   2006      2007     2008      2009    2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the        (2003)
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /            (2003)
nonpoint sources, land use data, and all
known stressors influencing water quality

Complete water quality monitoring. Analyze
data, assess loadings, and determine the                               X
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                 X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X       X        X         X        X           X
implementation based on follow-up
verification monitoring of effectiveness.




    208                                                              TCEQ/TSSWCB joint publication SFR-68/04
Buffalo and Whiteoak Bayous -bacteria
Segments 1013, 1014, 1017

                Milestones                     completed   2005   2006   2007   2008   2009    2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage      (2000)
 the participation of affected stakeholders
 in the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of      (2001)
 point / nonpoint sources, land use data,
 and all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and                         X
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                      X
 control strategies for implementation.

 Develop A detailed action plan (TMDL,
 IP, or WPP) which establishes overall                            TMDL    IP
 goals and objectives, load allocations,
 strategy for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                                  X      X      X       X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                  209
Cedar Lake- bacteria
Segments 2442

                 Milestones                       completed   2005   2006     2007     2008     2009      2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                          X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the                              X
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                          X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X      X         X        X        X        X
implementation based on follow-up
verification monitoring of effectiveness.




    210                                                              TCEQ/TSSWCB joint publication SFR-68/04
City of Denton Watershed Plan (Hickory Creek) -bacteria
Segment 0823

              Milestones                  completed     2005          2006        2007       2008   2009   2010


 Employ or develop a Local
 Watershed Committee to solicit input                     X
 and encourage the participation of
 affected stakeholders in the decision-
 making process.

 Complete the assessment of pollutant                 projected
 problems by reviewing existing water                 completion
 quality data, conducting an inventory
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.                                projected
 Analyze data, assess loadings, and                                completion
 determine the origin and distribution
 of pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan                                                 projected
 (TMDL, IP, or WPP) which                                                       completion
 establishes overall goals and
 objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust                      X             X           X         X      X         X
 the BMP implementation based on
 follow-up verification monitoring of
 effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                             211
Clear Creek Legacy and VOC Pollutants -chlordane, trichloroethane, dichloroethane
Segments 1101, 1102

               Milestones                      completed      2005        2006     2007     2008     2009     2010

 Employ or develop a Local Watershed           (1998)
 Committee to solicit input and encourage      Technical
 the participation of affected stakeholders    Advisory
 in the decision-making process.               Committee
                                               for VOCs

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of      (2000)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.                        tissue    con’td.
 Analyze data, assess loadings, and            (2001)      samples   sampling        X        X       X        X
 determine the origin and distribution of                  2000-2005
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.         omitted
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,         TMDL -      poss.
 IP, or WPP) which establishes overall         2001        revision if
 goals and objectives, load allocations,                   samples
 strategy for load allocation, timetable for   IP- 2003    show no
 implementation, and a list of expected                    decline
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the       (2001)           X          X         X        X       X        X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     212                                                                 TCEQ/TSSWCB joint publication SFR-68/04
Clear Creek Watershed - total dissolved solids, bacteria
Segment 1101, 1101B, 1102, 1102A, 1102B, 2425

                 Milestones                       completed   2005   2006   2007   2008   2009    2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the        2003
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the                                            X
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend
control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or
WPP) which establishes overall goals and
objectives, load allocations, strategy for load
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                                   X      X      X      X       X
implementation based on follow-up
verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                     213
Clear Fork of the Trinity River -dissolved oxygen
Segments 0831, 0833

                 Milestones                       completed   2005     2006    2007     2008     2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage the     (2000)
 participation of affected stakeholders in the
 decision-making process.


 Complete the assessment of pollutant
 problems by reviewing existing water quality
 data, conducting an inventory of point /         (2000)
 nonpoint sources, land use data, and all
 known stressors influencing water quality.

 Complete water quality monitoring. Analyze
 data, assess loadings, and determine the         (2001)
 origin and distribution of pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend            omitted
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals          UAA being
 and objectives, load allocations, strategy for   developed
 load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory actions
 in the watershed and adjust the BMP
 implementation based on follow-up
 verification monitoring of effectiveness.




     214                                                             TCEQ/TSSWCB joint publication SFR-68/04
Coastal Bend Bays Plan

             Milestones                    completed   2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and               (1998)
encourage the participation of affected
stakeholders in the decision-making
process.

Complete the assessment of pollutant
problems by reviewing existing water
quality data, conducting an inventory of     (1998)
point / nonpoint sources, land use data,
and all known stressors influencing
water quality.

Complete water quality monitoring.
Analyze data, assess loadings, and          Ongoing
determine the origin and distribution of
pollutants.

Develop and apply model(s) to
determine numerical load allocations.
Recommend control strategies for
implementation.

Develop A detailed action plan (TMDL,
IP, or WPP) which establishes overall
goals and objectives, load allocations,      (1998)
strategy for load allocation, timetable
for implementation, and a list of
expected results.

Implement voluntary and regulatory
actions in the watershed and adjust the      (1998)     X      X      X      X      X           X
BMP implementation based on follow-
up verification monitoring of
effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                               215
Colorado and San Gabriel Rivers, Brushy and Petronilla Creeks -chloride, sulfate, total
dissolved solids (TDS)
Segments1214, 1244, 1426, 2204

              Milestones                    completed   2005   2006     2007      2008      2009      2010


 Employ or develop a Local Watershed
 Committee to solicit input and            (2002)
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of (2003)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and       (2004)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.                   X
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,
 IP, or WPP) which establishes overall
 goals and objectives, load allocations,                                 X
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the (2002)          X      X        X         X         X            X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     216                                                        TCEQ/TSSWCB joint publication SFR-68/04
Concho River Basin- impaired macrobenthos community, chloride, total dissolved solids
Segments 1421, 1422, 1423, 1424, 1425

              Milestones                    completed     2005         2006         2007       2008   2009   2010


 Employ or develop a Local Watershed
 Committee to solicit input and                             X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant                   projected
 problems by reviewing existing water                   completion
 quality data, conducting an inventory
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.                                   projected
 Analyze data, assess loadings, and                                  completion
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                                            projected
 IP, or WPP) which establishes overall                                            completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                    X            X            X         X      X         X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                               217
Copano Bay Oysters - bacteria
Segments 2472

                 Milestones                       completed   2005   2006      2007     2008      2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                           X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                        X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X       X        X         X        X           X
implementation based on follow-up
verification monitoring of effectiveness.




    218                                                              TCEQ/TSSWCB joint publication SFR-68/04
Dallas Legacy Pollutants - chlordane, DDT, DDD, DDE, Dieldrin, Heptachlor Epoxide, PCBs
Segments 805, 841, 841A

                Milestones                   completed      2005       2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the (2000)
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /     (2000)
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze               tissue    con’t.
data, assess loadings, and determine the   (2000)        samples   sampling    X      X      X           X
origin and distribution of pollutants.                   2000-2005

Develop and apply model(s) to determine
numerical load allocations. Recommend       omitted
control strategies for implementation.

Develop A detailed action plan (TMDL, IP, TMDL -         poss.
or WPP) which establishes overall goals and (2001)       revision if
objectives, load allocations, strategy for load          samples
allocation, timetable for implementation, and            show no
a list of expected results.                              decline

Implement voluntary and regulatory actions
in the watershed and adjust the BMP        (2001)             X         X      X      X      X           X
implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                        219
Dickinson Bayou -dissolved oxygen
Segment 1103

              Milestones                    completed   2005    2006     2007      2008      2009      2010


 Employ or develop a Local Watershed
 Committee to solicit input and             (2000)
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory      (2001)
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and         (2004)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to                           new
 determine numerical load allocations.      (2004)      model
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,
 IP, or WPP) which establishes overall
 goals and objectives, load allocations,                         X
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                         X        X         X         X            X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     220                                                         TCEQ/TSSWCB joint publication SFR-68/04
E.V. Spence -sulfate, total dissolved solids
Segment 1411

                 Milestones                     completed   2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the    (1999)
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant problems
by reviewing existing water quality data,
conducting an inventory of point / nonpoint     (1998)
sources, land use data, and all known stressors
influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the origin (2000)
and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend           omitted
control strategies for implementation.

Develop A detailed action plan (TMDL, IP, or TMDL -
WPP) which establishes overall goals and        (2003)
objectives, load allocations, strategy for load
allocation, timetable for implementation, and a
list of expected results.

Implement voluntary and regulatory actions in
the watershed and adjust the BMP              (2001)         X      X      X      X      X           X
implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                    221
Ft. Worth Legacy Pollutants -chlordane, DDE, Dieldrin, PCBs
Segments 806, 806A, 806B, 829, 829A

                Milestones                      completed      2005       2006    2007      2008      2009      2010


Employ or develop a Local Watershed
Committee to solicit input and encourage         omitted
the participation of affected stakeholders in
the decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water
quality data, conducting an inventory of          (2000)
point / nonpoint sources, land use data, and
all known stressors influencing water
quality.

Complete water quality monitoring. Analyze                  tissue    con’td
data, assess loadings, and determine the          (2000)    samples   sampling      X        X         X            X
origin and distribution of pollutants.                      2000-2005

Develop and apply model(s) to determine
numerical load allocations. Recommend            omitted
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,                   poss.
or WPP) which establishes overall goals           (2001)    revision if
and objectives, load allocations, strategy                  samples
for load allocation, timetable for                          show no
implementation, and a list of expected                      decline
results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP               (2001)         X         X        X        X         X            X
implementation based on follow-up
verification monitoring of effectiveness.




    222                                                                   TCEQ/TSSWCB joint publication SFR-68/04
Galveston Bay Plan- bacteria
Segment

                 Milestones                       completed   2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the        (1994)
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality        (1994)
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring.                 Ongoing
Analyze data, assess loadings, and
determine the origin and distribution of
pollutants.
Develop and apply model(s) to determine
numerical load allocations. Recommend
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and         (1994)
objectives, load allocations, strategy for load
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                 (1994)     X      X      X      X      X           X
implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                      223
Gilleland Creek - bacteria
Segment 1428C

                  Milestones                       completed   2005   2006      2007     2008      2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage the                           X
 participation of affected stakeholders in the
 decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water quality
 data, conducting an inventory of point /
 nonpoint sources, land use data, and all
 known stressors influencing water quality.

 Complete water quality monitoring. Analyze
 data, assess loadings, and determine the
 origin and distribution of pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                                  X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals and
 objectives, load allocations, strategy for load                                 X
 allocation, timetable for implementation, and
 a list of expected results.

 Implement voluntary and regulatory actions
 in the watershed and adjust the BMP                            X       X        X         X        X           X
 implementation based on follow-up
 verification monitoring of effectiveness.




     224                                                              TCEQ/TSSWCB joint publication SFR-68/04
Guadalupe above Canyon - bacteria
Segment 1806


                 Milestones                       completed   2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                          X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                 X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                              X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X      X      X      X      X           X
implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                      225
Gulf Coast Oyster Waters -bacteria
Segments 2421, 2422, 2423, 2424, 2432, 2439, 2441, 2442, 2451, 2452, 2453, 2456, 2462, 2472

                 Milestones                      completed     2005          2006     2007     2008    2009        2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2001)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2002)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2002)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           (2003)      BST to be
 control strategies for implementation.                      completed

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                      X            X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                         X            X         X       X        X          X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     226                                                                 TCEQ/TSSWCB joint publication SFR-68/04
Houston Ship Channel -dioxin
Segments 0901,1001, 1005, 1006, 1007, 2421, 2426, 2427, 2428, 2429, 2430, 2436, 2438

              Milestones                      completed   2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage      (2000)
the participation of affected stakeholders
in the decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water
quality data, conducting an inventory of      (2001)
point / nonpoint sources, land use data,
and all known stressors influencing
water quality.

Complete water quality monitoring.
Analyze data, assess loadings, and                         X
determine the origin and distribution of
pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                      X      X
control strategies for implementation.

Develop A detailed action plan (TMDL,
IP, or WPP) which establishes overall                                   TMDL    IP
goals and objectives, load allocations,
strategy for load allocation, timetable for
implementation, and a list of expected
results.

Implement voluntary and regulatory
actions in the watershed and adjust the                    X      X      X      X      X           X
BMP implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                  227
Houston Ship Channel -nickel
Segments 1001, 1005, 1006, 1007, 1013, 1014, 1016, 1017, 2426, 2427, 2428, 2429, 2430, 2436

              Milestones                   completed   2005   2006    2007      2008      2009      2010


Employ or develop a Local Watershed
Committee to solicit input and             (1999)
encourage the participation of affected
stakeholders in the decision-making
process.

Complete the assessment of pollutant
problems by reviewing existing water
quality data, conducting an inventory of   (1990)
point / nonpoint sources, land use data,
and all known stressors influencing
water quality.

Complete water quality monitoring.
Analyze data, assess loadings, and         (1998)
determine the origin and distribution of
pollutants.

Develop and apply model(s) to
determine numerical load allocations.      (1998)
Recommend control strategies for
implementation.

Develop A detailed action plan (TMDL,
IP, or WPP) which establishes overall      (2001)
goals and objectives, load allocations,    TMDL
strategy for load allocation, timetable
for implementation, and a list of          (2003)
expected results.                            IP

Implement voluntary and regulatory
actions in the watershed and adjust the                 X      X        X        X         X            X
BMP implementation based on follow-
up verification monitoring of
effectiveness.




    228                                                       TCEQ/TSSWCB joint publication SFR-68/04
Lake Austin-dissolved oxygen
Segment 1403

                 Milestones                       completed       2005   2006   2007   2008   2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the      (1999)
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /          (1999)
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the          (2000)
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend             omitted
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and       EPA
objectives, load allocations, strategy for load   recommend-
allocation, timetable for implementation, and     ation to
a list of expected results.                       delist (2001)


Implement voluntary and regulatory actions
in the watershed and adjust the BMP               (2001)           X      X      X      X      X           X
implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                          229
Lake Granbury- bacteria
Segments 1205

               Milestones                    completed   2005     2006         2007         2008       2009   2010


 Employ or develop a Local Watershed
 Committee to solicit input and                           X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant                            projected
 problems by reviewing existing water                           completion
 quality data, conducting an inventory of
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.                                          projected
 Analyze data, assess loadings, and                                          completion
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                                                    projected
 IP, or WPP) which establishes overall                                                    completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                  X         X            X            X         X      X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     230                                                            TCEQ/TSSWCB joint publication SFR-68/04
Lake Granger Watershed Plan-sediment
Segments 1247

              Milestones                      completed   2005     2006         2007         2008       2009       2010


Employ or develop a Local Watershed
Committee to solicit input and encourage                   X
the participation of affected stakeholders
in the decision-making process.

Complete the assessment of pollutant                              projected
problems by reviewing existing water                             completion
quality data, conducting an inventory of
point / nonpoint sources, land use data,
and all known stressors influencing
water quality.

Complete water quality monitoring.                                            projected
Analyze data, assess loadings, and                                            completion
determine the origin and distribution of
pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend
control strategies for implementation.

Develop A detailed action plan (TMDL,                                                      projected
IP, or WPP) which establishes overall                                                      completion
goals and objectives, load allocations,
strategy for load allocation, timetable for
implementation, and a list of expected
results.

Implement voluntary and regulatory
actions in the watershed and adjust the                    X         X            X            X         X          X
BMP implementation based on follow-up
verification monitoring of effectiveness.




    TCEQ/TSSWCB joint publication SFR-68/04                                                                  231
Lake O’the Pines -dissolved oxygen
Segment 0403

                 Milestones                        completed   2005      2006    2007    2008     2009        2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (1998)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (1999)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2002)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           (2003)
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                     X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         (1999)         X         X       X        X        X          X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     232                                                            TCEQ/TSSWCB joint publication SFR-68/04
Lavaca and Chocolate Bays -mercury and dissolved oxygen
Segment 2453

               Milestones                    completed     2005      2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and              (2001)
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of    (2002)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and          (2003)-
 determine the origin and distribution of    indicated
 pollutants.                                 TMDL not
                                             necessary

 Develop and apply model(s) to
 determine numerical load allocations.         omitted
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                   proposed
 IP, or WPP) which establishes overall                   delisting
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the     (2001)          X        X      X      X      X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                     233
Little Wichita- dissolved oxygen, total dissolved solids
Segments 0211, 0212

              Milestones                    completed     2005         2006         2007       2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and                             X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant                   projected
 problems by reviewing existing water                   completion
 quality data, conducting an inventory
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.                                   projected
 Analyze data, assess loadings, and                                  completion
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                                            projected
 IP, or WPP) which establishes overall                                            completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                    X            X            X         X      X        X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     234                                                             TCEQ/TSSWCB joint publication SFR-68/04
Martin Creek Reservoir -selenium
Segment 0505F

               Milestones                    completed     2005      2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and              (2001)
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of    (2001)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.          advisory
 Analyze data, assess loadings, and          rescinded
 determine the origin and distribution of    (2004)
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                   proposed
 IP, or WPP) which establishes overall                   delisting
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                     X        X      X      X      X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                     235
Matagorda Bay / Tres Palacios Bay - dissolved oxygen
Segments 2451, 2452, 2456, 2483A

                 Milestones                       completed   2005   2006      2007     2008      2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                           X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                 X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X       X        X         X        X           X
implementation based on follow-up
verification monitoring of effectiveness.




    236                                                              TCEQ/TSSWCB joint publication SFR-68/04
Middle Brazos River Basin -dissolved oxygen
Segments 1217A, 1243

               Milestones                    completed   2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and                omitted
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of    (2001)
 point / nonpoint sources, land use data,
 and all known stressors influencing
 water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and          (2004)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.                    X
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,
 IP, or WPP) which establishes overall
 goals and objectives, load allocations,                  X      X
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the     (1999)       X      X      X      X      X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                237
North Bosque River -nutrients
Segments 1226, 1255

                Milestones                       completed   2005    2006     2007     2008      2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (1995)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (1996)
 point / nonpoint sources, land use data,
 and all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2000)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           (2000)                         X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals         (2001)
 and objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         (2002)       X       X         X        X        X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     238                                                            TCEQ/TSSWCB joint publication SFR-68/04
Nueces Bay Zinc Project -selenium, zinc
Segment 2482

                Milestones                       completed   2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2001)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2002)
 point / nonpoint sources, land use data,
 and all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2003)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           (2004)
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals                            TMDL    IP
 and objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         (2002)       X      X      X      X      X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                    239
Orange County -bacteria, dissolved oxygen, pH
Segment 0511, 0511A

                  Milestones                      completed   2005   2006      2007     2008      2009     2010

 Employ or develop a Local Watershed
 Committee to solicit input and encourage the     (2002)
 participation of affected stakeholders in the
 decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water quality
 data, conducting an inventory of point /         (2002)
 nonpoint sources, land use data, and all
 known stressors influencing water quality.

 Complete water quality monitoring. Analyze
 data, assess loadings, and determine the         (2004)
 origin and distribution of pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                         X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy for                        X
 load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory actions
 in the watershed and adjust the BMP              (2003)       X       X        X         X        X           X
 implementation based on follow-up
 verification monitoring of effectiveness.




     240                                                             TCEQ/TSSWCB joint publication SFR-68/04
Oso Bay -dissolved oxygen
Segments 2485, 2491

                 Milestones                       completed   2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage the     (2000)
 participation of affected stakeholders in the
 decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water quality
 data, conducting an inventory of point /         (2000)
 nonpoint sources, land use data, and all
 known stressors influencing water quality.

 Complete water quality monitoring. Analyze
 data, assess loadings, and determine the                      X
 origin and distribution of pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                         X      X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy for                       X      X
 load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory actions
 in the watershed and adjust the BMP              (1999)       X      X      X      X      X           X
 implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                     241
Oso Creek, Oso Bay - Bacteria
Segment 2485, 2485A

                 Milestones                       completed   2005   2006      2007     2008      2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                           X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /                               X
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the                               X
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                 X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X       X        X         X        X           X
implementation based on follow-up
verification monitoring of effectiveness.




    242                                                              TCEQ/TSSWCB joint publication SFR-68/04
Pecos Watershed Plan- chloride, sulfate, and total dissolved solids
Segments 2310, 2311

              Milestones                    completed      2005        2006         2007       2008   2009       2010


 Employ or develop a Local Watershed
 Committee to solicit input and                              X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant                   projected
 problems by reviewing existing water                   completion
 quality data, conducting an inventory
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.                                   projected
 Analyze data, assess loadings, and                                  completion
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                                            projected
 IP, or WPP) which establishes overall                                            completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                     X           X            X         X      X          X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                               243
Sabinal River - nitrate-nitrite
Segment 2110

                 Milestones                       completed   2005   2006      2007     2008      2009     2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                           X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the                               X
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                           X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X       X        X         X        X           X
implementation based on follow-up
verification monitoring of effectiveness.




    244                                                              TCEQ/TSSWCB joint publication SFR-68/04
Salado Creek -dissolved oxygen
Segment 1910

                 Milestones                       completed    2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (1998)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (1998)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2000)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend           (2001)
 control strategies for implementation

 Develop A detailed action plan (TMDL, IP,       TMDL -
 or WPP) which establishes overall goals         (2002)
 and objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the         IP was         X      X      X      X      X           X
 BMP implementation based on follow-up           determined
 verification monitoring of effectiveness.       unnecessary




     TCEQ/TSSWCB joint publication SFR-68/04                                                      245
San Antonio River Authority- bacteria
Segment 1911

              Milestones                    completed      2005        2006         2007       2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and                             X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant                   projected
 problems by reviewing existing water                   completion
 quality data, conducting an inventory
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.                                   projected
 Analyze data, assess loadings, and                                  completion
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.
 Recommend control strategies for
 implementation.

 Develop A detailed action plan (TMDL,                                            projected
 IP, or WPP) which establishes overall                                            completion
 goals and objectives, load allocations,
 strategy for load allocation, timetable
 for implementation, and a list of
 expected results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                    X            X            X         X      X        X
 BMP implementation based on follow-
 up verification monitoring of
 effectiveness.




     246                                                             TCEQ/TSSWCB joint publication SFR-68/04
San Antonio River Basin, Leon River, and Peach Creek -bacteria
Segments 1221, 1803C, 1901, 1910, 1910A, 1911

                Milestones                       completed   2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2003)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2001)
 point / nonpoint sources, land use data,
 and all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2004)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                        X      X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                                 X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                      X      X      X      X      X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                    247
South Central Texas -bacteria, dissolved oxygen
Segment 1427, 1806A, 1803A, 1803B, 2107, 2104, 2113, 1906, 1913, 1908

                 Milestones                      completed   2005    2006     2007     2008      2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2002)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2001)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and              (2004)
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                        X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                   X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the                      X       X         X        X        X           X
 BMP implementation based on follow-up
 verification monitoring of effectiveness.




     248                                                            TCEQ/TSSWCB joint publication SFR-68/04
Tarrant Regional Water District Watershed Plans

              Milestones                   completed   2005   2006     2007       2008   2009    2010


 Employ or develop a Local Watershed
 Committee to solicit input and                         X
 encourage the participation of affected
 stakeholders in the decision-making
 process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory                  X
 of point / nonpoint sources, land use
 data, and all known stressors
 influencing water quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and                     X      X         X         X      X       X
 determine the origin and distribution
 of pollutants.

 Develop and apply model(s) to
 determine numerical load allocations.                  X
 Recommend control strategies for
 implementation.

 Develop A detailed action plan                                      projected
 (TMDL, IP, or WPP) which                                            completion
 establishes overall goals and
 objectives, load allocations, strategy
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust                    X      X         X         X      X       X
 the BMP implementation based on
 follow-up verification monitoring of
 effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                               249
Trinity River -bacteria
Segments 0805

                 Milestones                       completed   2005   2006     2007      2008     2009      2010


Employ or develop a Local Watershed
Committee to solicit input and encourage the                          X
participation of affected stakeholders in the
decision-making process.

Complete the assessment of pollutant
problems by reviewing existing water quality
data, conducting an inventory of point /
nonpoint sources, land use data, and all
known stressors influencing water quality.

Complete water quality monitoring. Analyze
data, assess loadings, and determine the
origin and distribution of pollutants.

Develop and apply model(s) to determine
numerical load allocations. Recommend                                  X
control strategies for implementation.

Develop A detailed action plan (TMDL, IP,
or WPP) which establishes overall goals and
objectives, load allocations, strategy for load                                 X
allocation, timetable for implementation, and
a list of expected results.

Implement voluntary and regulatory actions
in the watershed and adjust the BMP                            X      X         X        X         X           X
implementation based on follow-up
verification monitoring of effectiveness.




     250                                                             TCEQ/TSSWCB joint publication SFR-68/04
Upper Oyster Creek -dissolved oxygen, bacteria
Segment 1245

                 Milestones                      completed   2005   2006   2007   2008   2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage        (2001)
 the participation of affected stakeholders in
 the decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water
 quality data, conducting an inventory of        (2002)
 point / nonpoint sources, land use data, and
 all known stressors influencing water
 quality.

 Complete water quality monitoring.
 Analyze data, assess loadings, and                           X      X
 determine the origin and distribution of
 pollutants.

 Develop and apply model(s) to determine
 numerical load allocations. Recommend                        X      X
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy                                 X      X
 for load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory
 actions in the watershed and adjust the
 BMP implementation based on follow-up                                      X      X      X           X
 verification monitoring of effectiveness.




     TCEQ/TSSWCB joint publication SFR-68/04                                                    251
Welsh Reservoir - selenium
Segment 404D

                 Milestones                       completed     2005       2006     2007      2008     2009     2010


 Employ or develop a Local Watershed
 Committee to solicit input and encourage the
 participation of affected stakeholders in the
 decision-making process.

 Complete the assessment of pollutant
 problems by reviewing existing water quality
 data, conducting an inventory of point /
 nonpoint sources, land use data, and all
 known stressors influencing water quality.

 Complete water quality monitoring. Analyze       advisory
 data, assess loadings, and determine the         rescinded
 origin and distribution of pollutants.           (2004)

 Develop and apply model(s) to determine                      proposed
 numerical load allocations. Recommend                        delisting
 control strategies for implementation.

 Develop A detailed action plan (TMDL, IP,
 or WPP) which establishes overall goals
 and objectives, load allocations, strategy for
 load allocation, timetable for
 implementation, and a list of expected
 results.

 Implement voluntary and regulatory actions
 in the watershed and adjust the BMP
 implementation based on follow-up                                           X        X        X        X           X
 verification monitoring of effectiveness.




     252                                                                  TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX D AQUIFER VULNERABILITY RANKING
SYSTEM
          DRASTIC: A Standardized System for Evaluating Groundwater Pollution Potential
          Using Hydrogeologic Settings (EPA/600/2-87/035 June 1987).

          DRASTIC is an acronym composed of letters for each of the measurable parameters for
          which data are generally available from a variety of reference sources, including the
          Texas Water Development Board, Natural Resource Conservation Service, Bureau of
          Economic Geology, USGS and others. These parameters are called DRASTIC factors,
          and include:

          D - Depth to water
          R - net Recharge
          A - Aquifer media
          S - Soil media
          T - Topography
          I - Impact of the vadose zone media
          C - hydraulic Conductivity of the aquifer

          In the DRASTIC methodology, each of these factors has a "range" and associated
          "rating" - for example, Depth to water has the following ranges and ratings:

                              Range          Rating

                              0-5 feet       10

                              5-15 feet      9

                              15-30 feet     7

                              30-50 feet     5

                              50-75 feet     3

                              75-100 feet    2

                              100+ feet      1
          As is evident, the "rating" has a higher numeric value for a
          shallower depth to water.

          Net Recharge has a "range" based on inches of infiltration.

          Aquifer media has a "range" based on rock type, as is Impact of vadose zone material.
          Soil media is similarly based on soil type.

          Topography's range is based on percent slope.
          The range for hydraulic Conductivity is based on gallons per day per square foot.


   TCEQ/TSSWCB joint publication SFR-68/04                                             253
                    The "ratings" are then multiplied by an assigned "weight" for each of the factors - for
                    Depth to water, the assigned "weight" is 5. For Topography, the assigned "weight" is 1.
                    These "weights" are for a pollution potential from general, industrial, and municipal
                    sources. The factors receive a different set of assigned "weights" for pollution potential
                    from agricultural sources. Factor "weights" may also be based on the best professional
                    judgement of a geo-scientist doing the analysis.

                    Factor "ratings", multiplied by their assigned "weights", are then added together to
                    yield a DRASTIC index, a numerical indicator of an aquifer's relative susceptibility to
                    impacts from surface activities in a given location. More information may be obtained
                    from the publication referenced at the top of this section.
Table D.1 Aquifer Vulnerability Ranking
                 Major Aquifers            Average Drastic Index     Vulnerability Rank *

 Seymour                                            144                      High

 Edwards (Balcones Fault Zone -                     135                      High
 San Antonio)

 Edwards (Balcones Fault Zone - Austin)             126                      High

 Carrizo-Wilcox                                     117                     Medium

 Edwards-Trinity (Plateau)                          107                     Medium

 Ogallala (South)                                   99                      Medium

 Gulf Coast                                         95                      Medium

 Trinity                                            95                      Medium

 Cenzoic Pecos Alluvium                             95                      Medium

 Ogallala (North)                                   87                       Low

 Hueco-Mesilla Bolson                               84                       Low

                 Minor Aquifers            Average Drastic Index     Vulnerability Rank *

 Brazos River Alluvium                              144                      High

 Ellenberger-San Saba                               126                      High

 Marble Falls                                       126                      High

 Hickory                                            114                     Medium

 Nacatoch                                           111                     Medium

 Blossom                                            109                     Medium

 Queen City                                         108                     Medium

 Lipan                                              108                     Medium

 Rustler                                            106                     Medium

 Blaine                                             102                     Medium


           254                                                     TCEQ/TSSWCB joint publication SFR-68/04
              Minor Aquifers              Average Drastic Index   Vulnerability Rank *

Bone Springs-Victorio Peak                          100                 Medium

Capitan Reef Complex                                98                  Medium

Sparta                                              98                  Medium

Marathon                                            96                  Medium

West Texas Bolsons                                  90                    Low

Edwards-Trinity (High Plains)                       83                    Low

Rita Blanca                                         83                    Low

Woodbine                                            82                    Low

Igneous                                             79                    Low

Dockum                                              78                    Low

Yegua-Jackson                                  Not Available          Not Available




          TCEQ/TSSWCB joint publication SFR-68/04                                        255
APPENDIX E THE HISTORY OF NONPOINT SOURCE
MANAGEMENT
          The need to protect the environment from nonpoint source pollution has resulted in the
          creation of a number of pollution control laws, regulations, and programs over the past
          30 years. The implementation of these programs takes place at all levels - federal, state,
          and local. This Appendix presents a historical overview of some of the major legislation
          and programs that have been implemented to address nonpoint source pollution.

Clean Water Act of 1972
          The Clean Water Act (CWA) of 1972 forms the basis for water quality protection for
          surface water as well as groundwater. It was enacted as a series of amendments to the
          Federal Water Pollution Control Act of 1948. The 1972 Act was prompted by the
          worsening state of America's rivers and several high-profile oil spills. The stated
          objective of the Clean Water Act is "to restore and maintain the chemical, physical, and
          biological integrity of the Nation's waters." The Act instituted a national program for
          cleaning up the nation's waters and required state programs be put in place to achieve
          the water quality goals. The statute employed a variety of regulatory and nonregulatory
          tools to reduce pollutant discharges into waterways, finance municipal wastewater
          treatment, and manage polluted runoff.

          Congress did not directly regulate nonpoint source pollution in the original 1972 Act.
          Instead, early efforts at nonpoint source management were relegated to state and local
          governments through general area-wide waste management planning conducted under
          §208 of the CWA. Under the 208 program, state governors designated local
          management authorities for areas with waste treatment problems. These local
          authorities, in turn, engaged in comprehensive area-wide waste treatment planning.
          The Plans were primarily devoted to treatment works, but were also to take account of
          various nonpoint sources of pollution, including agricultural, silvicultural,
          mine-related, and construction related sources. §208 provided cost share funds to
          those areas of States which had approved waste management plans.

          In the late 1970's, initial Water Quality Management Plans for Texas were prepared by
          the Texas Department of Water Resources (now the TCEQ) under the provisions of
          §208. These plans contained an assessment of NPS pollution conditions in each of the
          classified waters in Texas. Based primarily on these assessments, some fifteen
          individual NPS-related studies were conducted over a period of three years.

          During the development of these initial Plans, two executive orders were issued to
          delineate the responsibilities of the two principle agencies involved with nonpoint
          source controls in the State of Texas. In 1979, the Texas Department of Water
          Resources was designated the State agency responsible for coordinating §208 planning,
          while the Texas State Soil and Water Conservation Board (TSSWCB) was designated as
          the planning agency responsible for identifying management strategies for agricultural
          and silvicultural nonpoint sources of pollution.
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National Urban Runoff Program
           For many years following the passage of the CWA, EPA and the states focused
           pollution control efforts mainly on regulating discharges from traditional "point
           source" facilities, such as municipal sewage plants and industrial facilities. These
           dischargers were considered the primary contributors to poor water quality conditions.
           However, as better point source control measures were developed, it became evident
           that more diffuse sources of water pollution were also contributing to water quality
           problems.

           The National Urban Runoff Program (NURP) was developed by EPA in 1978 as a
           five-year program to obtain data on control of urban runoff quality and its impact on
           receiving waters. Between 1978 and 1983, NURP conducted studies that evaluated
           outfalls in 28 communities across the United States. These studies confirmed that
           contaminants contained in urban and suburban runoff, such as sediments, phosphorus,
           nitrates, coliform bacteria, as well as lead, and other heavy metals, impaired water
           quality in streams, lakes, wetlands, and estuaries. The data also showed that runoff
           from urban and industrial areas contained significant quantities of the same types of
           regulated pollutants that are found in wastewater and industrial discharges.

National Pollutant Discharge Elimination System
           To address the problem of stormwater runoff, Congress amended the Clean Water Act
           in 1987 to include urban stormwater discharges as a "point source," requiring the EPA
           to develop permit requirements for urban stormwater discharges even though the actual
           source of the pollution is from nonpoint sources. The National Pollutant Discharge
           Elimination System (NPDES) law was promulgated as a two-phase program. Phase
           One, implemented in 1990, addressed construction, industrial, and municipal
           discharges in cities with populations over 100,000. Phase Two for all municipalities
           under 100,000 became effective in 2003. The TCEQ assumed delegation of the Federal
           NPDES program (now known as TPDES) in September 1998.

Rural Clean Water Program
           In 1980, Congress established an experimental program to address agricultural
           nonpoint source pollution. The experiment was called the Rural Clean Water Program
           (RCWP). The RCWP combined land treatment and water quality monitoring to
           document the effectiveness of NPS pollution control measures.

           Twenty-one experimental RCWP projects were selected throughout the country,
           representing a wide range of pollution problems and impaired water uses. Each of the
           projects involved the implementation of best management practices (BMPs) to reduce
           NPS pollution and water quality monitoring to evaluate the effects of the land
           treatment. BMP installation was targeted to land areas or sources of NPS pollutants
           identified as having significant impacts on the impaired or threatened water resource.
           Cost-share funds and technical assistance were offered to producers as incentives for


    TCEQ/TSSWCB joint publication SFR-68/04                                             257
      using or installing BMPs. The RCWP was administered by the U.S. Department of
      Agriculture in consultation with the U.S. Environmental Protection Agency.

      The RCWP projects made significant contributions to the body of knowledge about NPS
      pollution, NPS pollution control technology, agricultural NPS pollution monitoring
      design and data interpretation, and the effectiveness of voluntary cost-share programs
      designed to assist producers in reducing agricultural NPS pollution. The RCWP
      program was phased out by 1990.

      The 1987 Clean Water Act Amendment: Nonpoint Source Management

      In 1987 Congress amended the 1972 Clean Water Act by adding §319. This amendment
      was the first concerted effort by the federal government to address pollution from
      nonpoint sources. §319 established a national policy requiring states to develop and
      implement programs for the control of nonpoint source pollution. The new §319 created
      a two step process for nonpoint source management. States first had to submit to EPA a
      report that identifies waters within the state that, without additional action to control
      nonpoint sources of water pollution, cannot reasonably be expected to attain or
      maintain applicable water quality standards or the goals and requirements of the Clean
      Water Act. States then had to submit a nonpoint source management program to the
      EPA for approval. In addition, §319 provided for continuing federal monitoring of state
      nonpoint source progress through annual reports to EPA, and EPA's annual reports to
      Congress.

      Initially, the Texas Water Commission (predecessor to TCEQ) was given the authority
      to administer the §319 Nonpoint Source program for the State of Texas, and used its
      authority to provide federal funds to a small number of planning agencies and river
      authorities across the state. In response to the 1987 Amendment, the Commission
      completed its initial NPS Pollution Assessment Report and Management program in
      1989, and prepared the first program update in 1991.

      As part of the public participation process, the Texas Water Commission convened a 27
      member panel representing industry, agriculture, environmental groups, and
      government from diverse areas of the state to recommend a program to reduce nonpoint
      source pollution in Texas. The group's initial meeting was held on March 30, 1989. The
      committee established three specialized subcommittees–Education, Monitoring &
      Database, and Best Management Practices –reflecting the major emphases and worked
      16 months to produce a set of fourteen recommendations. The recommendations ranged
      from development of a BMP technical manual to enforcement activities and public
      education. The Funding Subcommittee recommended funding requirements of $3.6
      million to implement the program and recommended the Commission seek to implement
      the entire recommendation package. Specific methods for funding were not identified in
      order to allow the Commissioners flexibility in identifying funding sources. All fourteen
      recommendations were adopted by the TWC.

      In 1993, the Texas Legislature authorized the Texas State Soil and Water Conservation
      Board to implement voluntary programs to assist agricultural and silivicultural

258                                                TCEQ/TSSWCB joint publication SFR-68/04
           producers to meet the state's water quality goals and standards. As a result of
           TSSWCB's new authority, the EPA began to award half of the annual Texas §319(h)
           grant allotment directly to the TSSWCB, with the other half awarded to the Texas
           Natural Resource Conservation Commission (renamed the Texas Commission on
           Environmental Quality in 2002.) The TSSWCB and TCEQ coordinate the §319
           program for the State of Texas according to the terms of a Memorandum of Agreement
           executed in 1993 between the two agencies.

           In 1996, the State of Texas initiated preparation of the second update to the State's
           Nonpoint Source Management Program which was approved by EPA in February
           2000. The document was a collaborative effort between the TCEQ and the TSSWCB
           and was designed to complement the TMDL process underway in Texas.

           Recent grant guidelines under §319 reflect the growing recognition that strategies built
           on specific watershed conditions are more effective at controlling nonpoint source than
           approaches based on jurisdictional roles of municipalities, counties, and states. Under
           the watershed approach, equal emphasis is placed on protecting healthy waters and
           restoring impaired ones. Involvement of stakeholder groups in the development and
           implementation of strategies for achieving and maintaining water quality goals will
           become an integral part of future nonpoint source management under the §319
           PROGRAM.


CLEAN WATER ACTION PLAN
           A major enhancement to the §319 grant program came about in 1998 through the
           EPA's and USDA's Clean Water Action Plan (CWAP). In his 1998 State of the Union
           Address, President Bill Clinton announced a new Clean Water Initiative to speed the
           restoration of the nation's waterways. This new initiative aimed to achieve clean water
           by strengthening public health protections, targeting community-based watershed
           protection efforts at high priority areas, and providing communities with new resources
           to control polluted runoff.

           The CWAP emphasized four tools in achieving water quality: (1) a watershed approach
           to water pollution; (2) stronger federal and state water quality standards; (3) better
           natural resource stewardship for cropland, pasture, rangeland, and forests; and (4)
           better information for citizens and government officials. All of these tools affect
           nonpoint source pollution control and incorporate federal and state or local measures.
           In conjunction with the plan, the CWAP initiative was budgeted additional funds by
           Congress for water pollution control. §319 nonpoint source control programs received
           $200 million of additional funding, known as incremental funding, and NOAA received
           a new allocation to control polluted runoff and toxic contaminants. Since award of the
           first incremental funds in 1999, Congress has budgeted both base and incremental
           grant funding to EPA and the States for control of nonpoint source pollution.




    TCEQ/TSSWCB joint publication SFR-68/04                                              259
Total Maximum Daily Load Program
          The 1972 Clean Water Act did provide another mechanism for addressing nonpoint
          source pollution through §303. This Section required states to set ambient water quality
          standards for all water bodies within the state and identify the beneficial uses of each
          water body. In 1985 and 1992, EPA issued rules for implementing §303(d) under which
          States were required to identify those waters not meeting water quality standards;
          prioritize those waters; and set Total Maximum Daily Loads, or TMDLs, of pollutants
          for each such waterbody in order of priority. The TMDL process was designed to
          address load allocations for nonpoint sources as well as point sources. In addition, the
          rule required States TMDLs to restore those impaired waters but did not provide for
          actual implementation of the TMDLs.

          In the 1970's and 1980's, EPA and the States focused on bringing point sources of
          pollution into compliance with NPDES requirements. Setting TMDLs for both point and
          nonpoint source pollution was viewed as an expensive and complicated process. The
          lack of widespread TMDL development was perceived by many groups around the
          country as a source of contention. As a result, a string of court cases filed in the early
          to mid-1990's, under the citizen suit provision of the CWA, forced EPA and the states to
          stop avoiding TMDL implementation.

          Although the State of Texas was not involved in litigation, the TCEQ committed itself in
          1998 to developing TMDLs for all impaired waterbodies within 10 years of their first
          placement on the state's 303(d) list. The 76th (1999) and 77th (2001) Texas Legislatures
          appropriated funds to the TCEQ and the TSSWCB to support the development of
          TMDLs. Texas has already completed a number of TMDLs for nonpoint source affected
          waterbodies and submitted them to the EPA. Currently, the TCEQ and TSSWCB
          operate under the 1992 EPA TMDL guidelines. Control of nonpoint sources remains
          voluntary through the implementation of best management practices.

National Estuary Program
          In response to pollution in coastal waters, Congress established the National Estuary
          Program (NEP) under §320 of the Clean Water Act of 1987. The mission of the NEP is
          to protect and restore the health of estuaries while supporting economic and
          recreational activities. Under the Act, the administrator of the EPA was given
          authorization to convene management conferences to develop Comprehensive
          Conservation and Management Plans (CCMPs) for estuaries of national significance
          that are threatened by pollution, development, or overuse. Two Texas estuaries were
          named Estuaries of National Significance under §320 and were accepted into the
          National Estuary Program: Galveston Bay in July 1988, and Corpus Christi Bay in
          October 1992.

          Both Texas estuaries have been impacted by nonpoint source pollution. The Coastal
          Bend Bays & Estuaries Program (CBBEP), established in 1994, submitted a CCMP in
          1998. Contaminated stormwater flowing into the bay has been identified as a primary
          water quality concern. With funds from federal, state, and local governments, private


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           industry and foundation grants, the CBBEP has provided funding for nonpoint source
           control projects in the coastal bend region. The Galveston Bay Estuary Program
           (GBEP), established in 1989, drafted and adopted a CCMP in April 1995 to improve
           water quality and enhance living resources in Galveston Bay. Water and sediments in
           tributaries and near-shore areas of Galveston Bay have been degraded by
           contaminated runoff from nonpoint sources, primarily from urbanized areas. During
           the 1995 Texas legislative session, funds were approved for the GBEP to proceed with
           Plan implementation.

           In 1999, the Texas Legislature passed the Texas Estuaries Act (HB 2561), which
           recognized the economic and environmental value of publicly held resources in Texas
           estuaries. The Act identified the TCEQ as the lead management agency and directs
           other state agencies to work together.

Other Federal Programs
           The Clean Water Act, which recently celebrated its 30th anniversary, has been credited
           with significant water quality improvements to surface water. Under the CWA,
           municipal and industrial wastewater facilities have been built or upgraded and
           industrial point source discharges have been regulated and controlled. Despite this
           progress, many waterbodies remain impaired from nonpoint sources. Congress has not
           significantly amended the Clean Water Act's nonpoint source provisions since 1987,
           however, the CWA is not the only vehicle through which Congress has extended federal
           control over nonpoint source pollution.

Coastal Zone Nonpoint Source Management
           In 1972 Congress passed the Federal Coastal Zone Management Act (CZMA) in
           response to reports on coastal pollution and erosion. With this Act, the federal
           government established a program to encourage coastal states and territories to
           develop land-use plans that would protect coastal resources, including wetlands, dunes,
           and barrier islands. The CZMA provided funding to states to develop programs to
           define and regulate permissible land and water uses within this zone.

           The Coastal Zone Management Reauthorization Amendments of 1990 (CZARA) created
           the Coastal Nonpoint Source Program under §6217. As a prerequisite for receiving
           continued CZMA funding, CZARA required the 29 coastal states, with federally
           approved coastal zone management plans, to develop and submit coastal nonpoint
           source pollution control programs for approval by the National Oceanic and
           Atmospheric Administration (NOAA) and the Environmental Protection Agency (EPA).
           States were required to issue management measures for certain categories of runoff and
           erosion, and to evaluate nonpoint sources and identify coastal areas that would be
           negatively affected by specified land uses. In 1991, EPA proposed guidance on
           management measures for five major categories of nonpoint sources. In 1992, EPA
           provided updated guidance for an agricultural management measure for erosion and
           sediment control and confined animal facility management, and a management measure
           for urban runoff in developing areas. The Coastal Nonpoint Source Program also

    TCEQ/TSSWCB joint publication SFR-68/04                                             261
      established shared responsibility for managing coastal waters between state Coastal
      Zone Management programs and state agencies responsible for overseeing
      implementation of §319 programs.

      In 1991, the Texas Legislature directed the General Land Office to head up a Coastal
      Coordination Council, which developed a Coastal Zone Management Plan in response
      to the requirements of the CZARA. The Plan, which became effective in 1995, sets
      policies, standards and regulations affecting private and public property in all counties
      contiguous to the Texas coastline. Activities such as development permits,
      fill-and-dredge operations, siting of oil and gas waste-disposal pits, agricultural
      activities, and highway construction are addressed in the plan. The Texas Coastal
      Management Program was approved by the National Oceanic and Atmospheric
      Administration (NOAA) on January 10, 1997.

      As a requirement for federal approval of its coastal management program, Texas was
      required to develop and implement a program to specifically address coastal nonpoint
      source pollution. The purpose of the Coastal NPS Program is to identify sources of
      coastal NPS pollution and develop recommendations for its prevention.

      The Coastal NPS Program for Texas has been under development since 1997. To
      facilitate the development of the NPS Program, the Coastal Coordination Council
      established a work group comprised of staff from the General Land Office, Texas
      Commission on Environmental Quality, Texas Railroad Commission, Texas Department
      of Transportation, Texas Parks and Wildlife Department, Texas State Soil and Water
      Conservation Board, and a public member from the Council. This work group has
      addressed comments submitted by the National Oceanic and Atmospheric
      Administration (NOAA) and the Environmental Protection Agency (EPA) regarding
      Texas' Coastal NPS Program, reviewed and recommended proposed NPS pollution
      control projects, and researched possible options to enhance the program.

      In December 1998, Texas submitted its Coastal NPS Program to NOAA and EPA. After
      two and a half years of discussion between Texas and the federal agencies, NOAA and
      EPA published in the Federal Register, in late September 2001, their intent to approve
      the Texas Coastal NPS Program with certain conditions. NOAA and EPA identified six
      areas (encompassing 18 of the 52 required management measures) that Texas must
      strengthen or correct prior to receiving full approval of the Coastal NPS Program.
      These areas are:

      #       development and site development
      #       watershed protection and existing development
      #       construction site chemical control
      #       new and operating onsite disposal systems
      #       roads, highways, and bridges; and
      #       hydromodification
      On December 24, 2002, NOAA and EPA emailed a memo concerning policy
      clarification on the overlap of §6217 Coastal NPS Programs with Phase I and Phase II

262                                                 TCEQ/TSSWCB joint publication SFR-68/04
           Storm Water Regulations. This memo clarifies which activities are no longer subject to
           the requirements of the Coastal Zone Act Reauthorization Amendments of 1990
           (CZARA) Coastal NPS Control Program.

           The second notice to conditionally approve Texas' Coastal NPS Program was posted in
           the Federal Register on April 7, 2003. The Final Conditional Approval Letter was
           received on July 9, 2003. Texas was given five years to meet the remaining conditions.
           The Coastal NPS Program coordinates with other programs, such as the Galveston Bay
           Estuary Program and the Coastal Bend Bays and Estuaries Program, to ensure wide
           participation and input into the Coastal NPS Program.

Safe Drinking Water Act: Source Water Protection
           The Safe Drinking Water Act (SDWA), promulgated by Congress in 1974, established a
           Federal program to monitor and increase the safety of the nation's drinking water
           supply. The SDWA authorized the EPA to set and implement health-based standards to
           protect against both naturally occurring and man-made contaminants in drinking
           water. The 1986 Amendment to the SDWA included a provision for States to establish
           wellhead protection (WHP) areas to protect groundwater from all sources of
           contamination including nonpoint sources. Texas was the first state in the nation to
           implement a wellhead protection project, having adopted a voluntary approach. The
           1996 Amendment to the SDWA expanded the WHP program to strengthen protection
           for all sources of drinking water including surface water.

Intermodal Surface Transportation Efficiency Act
           Another major piece of legislation passed in 1991 was the Intermodal Surface
           Transportation Efficiency Act (ISTEA) designed to expand and improve the quality and
           condition of the nation's highway and transportation system. This Act contained
           provision for the planning and developing of highway systems and a host of
           transportation enhancement activities including the mitigation of water pollution due to
           highway runoff. ISTEA established a block grant program in which States could use a
           portion of their federal highway funding allotment for runoff pollution control devices
           and other best management practices to reduce the amount of polluted runoff that
           reaches lakes and rivers. ISTEA also required that Departments of Transportation
           develop national erosion control guidelines for states to follow when carrying out
           federal-aid construction projects. Federal Highway Administration guidelines for
           erosion and sediment control in coastal areas must be consistent with both CZARA
           Guidance and the state 319 program.

The Food Security Act of 1985
           Since 1985, farm bills have recognized the environmental problems caused by or
           associated with agricultural nonpoint source pollution. Congress passed the federal
           Food Security Act in 1985 to help prevent erosion of cropland and, incidentally, to
           control sediment runoff from farms. Conservation compliance provisions of the act
           required farmers who farm highly erodible land to have a conservation plan developed
           by 1990 and installed by 1995 to be eligible to participate in federal farm programs.

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          The Act also established the Conservation Reserve Program (CRP) to provide financial
          incentives to farmers who take highly erodible cropland and other environmentally
          fragile land out of production.

Federal Agriculture Improvement and Reform Act of 1996
          In 1996 Congress reauthorized the Farm Bill (the Federal Agriculture Improvement
          and Reform Act) which refunded and restructured the Conservation Reserve Program
          and made changes to the program including the addition of environmental criteria in
          recognition that agriculture is a major cause of nonpoint source pollution. The
          programs of the Farm Bill are administered by the USDA - Natural Resource
          Conservation Service (NRCS).

          The 1996 Bill also created the Environment Quality Incentives Program (EQIP) which
          offered financial, educational, and technical assistance to encourage persons involved
          in agricultural or livestock production to adopt conservation practices to protect water
          quality.

Farm Security and Rural Investment Act of 2002
          The Farm Security and Rural Investment Act of 2002, authorized or reauthorized a
          number of conservation programs, including the Resource Conservation and
          Development Program. The legislation simplified existing programs and created new
          ones to address high-priority environmental and production goals. The new Farm Bill
          authorized an 80 percent increase in funding above levels previously available for
          USDA programs designed to protect and conserve natural resources. The 2002 Farm
          Bill also enhanced coordination between the EPA and the USDA by integrating
          funding and resources to minimize potential duplication of effort.

State of Texas Nonpoint Source Control Programs
          In addition to the CWA §319 grant program and other federally funded programs, the
          State of Texas has managed nonpoint source water pollution through a combination of
          programs and regulations at the regional and local level.

General Discharge Prohibition
          The Texas Water Code provides that, except as authorized, no person may "discharge
          sewage, municipal waste, recreational waste, agricultural waste, or industrial waste
          into or adjacent to any water in the state," discharge other waste which in itself or in
          conjunction with any other discharge or activity causes pollution of any water of the
          state, or commit any other act which causes pollution of any water of the state.
          Exempted from this prohibition are: discharges authorized by permit, discharges in
          compliance with a certified water quality management plan as provided under the state
          agriculture code, and activities under the jurisdiction of the Parks and Wildlife
          Department, the General Land Office or the Railroad Commission of Texas. The TCEQ
          enforces these provisions.


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Texas Local Government Code
           Texas law also puts authority to regulate land uses at the regional, county, and
           municipal level. Texas' local government code includes provisions allowing a
           home-rule municipality to prohibit the pollution of streams, drains, and tributaries that
           "may constitute the source of the water supply of any municipality." The law more
           broadly states that a home-rule municipality may provide protection for and police any
           watershed. A municipality may exercise other provisions inside or outside the
           municipality's boundaries.

Municipal Pollution Abatement Plans
           The TCEQ's regulatory approach to urban nonpoint source management is found in the
           Texas Water Code, §26.177, which defines the water pollution control duties of cities in
           Texas. The statute was originally passed by the legislature in 1967 and was amended in
           1971, 1977, 1987 and 1997. Under this section, cities having a population of 10,000 or
           more inhabitants are required to establish a water pollution control and abatement
           plan when the Clean Rivers Basin assessments or other TCEQ assessments identify
           water pollution impacts arising within the respective city and not associated with
           permitted point sources. These plans are to be submitted to the TCEQ for review and
           approval to address pollution attributable to non-permitted sources, to implement
           measures to control and abate water pollution within the city's jurisdiction. The statute
           allows for TCEQ to establish criteria for water pollution control and abatement
           programs and allows the agency to assess fees to cover the costs to administer the
           program. The following requirements are specified for water pollution control and
           abatement: 1) Inventory, monitor, and obtain compliance for waste discharges; and 2)
           provide for "reasonable and realistic planning plans for controlling..." nonpoint source
           pollution. Rules implementing §26.177 of the Texas Water Code were developed in
           1998 and were adopted by the TCEQ in 1999.

Livestock and Poultry Production Operations
           In 1987, the Texas Water Commission (now the TCEQ) adopted rules regulating animal
           feeding operations (AFOs) that can contribute to nonpoint source pollution. AFOs over
           a certain size, known as concentrated animal feeding operations (CAFOs), are required
           to obtain a NPDES permit. State regulations prohibit these facilities from discharging
           wastewater or animal waste directly into streams and rivers or allowing the waste to
           run off the site, where it could contaminate surface water or groundwater. The permit
           requires the operator to develop a pollution prevention plan that addresses water and
           air pollution as well as the land application of wastes and wastewater.

           Recent rule changes for CAFOs have established stricter permit requirements in certain
           watersheds where water quality problems have been attributed to livestock operations.
           The TCEQ adopted rules on March 6, 2002, to implement the requirements of House
           Bill 2912, of the 77th Texas Legislature regarding permitting requirements for CAFOs
           located in major sole-source impairment zones and the protection of sole-source
           drinking water supplies. The EPA adopted changes to the federal CAFO regulations

    TCEQ/TSSWCB joint publication SFR-68/04                                               265
          and effluent guidelines that became effective on April 13, 2003, changing the
          requirements to operate CAFOs under the Clean Water Act. Specifically, the new
          federal regulations changed which animal feeding operations were defined as CAFOs
          and what management practices are required for those operations. The effluent
          guidelines changed the design standards for new source swine, veal, and poultry
          operations and added a requirement for nutrient management plans (NMPs). These new
          changes meant that under the state's NPDES MOA with EPA, all state CAFO rules must
          also meet federal requirements. On February 25, 2004, the TCEQ approved rules that
          incorporate changes necessary to support the recommendations of the Implementation
          Plan for the Total Maximum Daily Load evaluations for Segments 1226 and 1255 of the
          Bosque River.

Edwards Aquifer Protection Program
          Development activities in various portions of the Edwards Aquifer have been regulated
          since 1970 when the Texas Water Quality Board (a predecessor agency to the TCEQ)
          issued an order designed to protect the quality of water entering the Edwards Aquifer
          recharge zone. Sources of pollution such as underground storage tanks, above ground
          storage tanks, and sewer lines were regulated. The first Texas counties affected were
          Kinney, Uvalde, Medina, Bexar, Comal, and Hays. Upon petition by local government,
          construction activities in portions of Williamson County became regulated in 1986. In
          1990, construction activities in portions of Travis county were also regulated.

          The TCEQ's Edwards Aquifer Protection Program rules regulate certain activities
          having the potential to adversely affect the water quality of the Edwards Aquifer and
          hydrologically-connected surface water in order to protect existing and potential
          beneficial uses of groundwater. The rules require that developers obtain a letter of
          approval before beginning construction activity and require that developers implement
          both temporary and permanent best management practices during and after
          construction.

          In 1999, Edwards rules were extended to cover the contributing zone to the recharge
          area. Other changes included a design performance standard for permanent best
          management practices. The standard applies to water quality systems used for
          stormwater treatment. Examples include sand filtration basins, extended detention
          basins, and retention ponds with irrigation systems. The rules also require engineers to
          certify the construction of the systems. There is also a mechanism in the rules to ensure
          maintenance of these systems. Regulated activities are those that have the potential for
          polluting surface streams that will cross the recharge zone. This includes large
          construction projects and installation of petroleum storage tanks.

On-Site Sewage Facilities
          Prior to the late 1960's, the regulation of on-site sewage facilities (OSSF) in Texas was
          administered primarily by municipal governments through local building inspection
          and plumbing inspection programs. There was no inspection of installation outside of
          municipal jurisdiction. In the late 1960's, the Texas Legislature adopted legislation


    266                                                 TCEQ/TSSWCB joint publication SFR-68/04
           which empowered other local governmental entities (e.g., counties, river authorities,
           Municipal Utility Districts, etc.) to adopt OSSF control orders subject to approval by
           the Texas Water Quality Board (now TCEQ). These approved orders gave local
           governments authority to permit systems, conduct inspections, collect fees, and
           investigate complaints.

Soil Conservation Laws and Programs
           Early attempts at soil conservation legislation in Texas began during the "Dust Bowl"
           days of the 1930's when the problems of wind and water erosion began to get public
           attention. Legislation authorizing the establishment of Wind Erosion Conservation
           Districts was enacted by the 44th legislature in 1935. This law provided for the creation
           of districts to conserve the soil by prevention of unnecessary erosion caused by winds,
           and reclamation of lands that were depreciated or denuded of soil by wind. The
           TSSWCB, created in 1939, was charged with the responsibility of organizing soil
           conservation districts throughout the state. In 1941, the 47th Legislature passed House
           Bill 444 which is the basic conservation law under which the Texas State Soil and
           Water Conservation Board and the Soil and Water Conservation Districts operate
           today.

           The TSSWCB is charged with the responsibility of administering and coordinating the
           state's soil and water conservation laws and programs with the State's 217 soil and
           water conservation districts. Through various educational and financial programs, the
           districts provide assistance to farmers and ranchers to encourage the wise and
           productive use of the state's soil and water resources. After passage of the 1972 Clean
           Water Act, the soil and water conservation district directors in Texas asked the
           TSSWCB to seek an appropriate role for them in nonpoint source planning and
           management. This request led to the passage of Senate Bill 229 passed during the 69th
           Texas Legislature. This legislation added §201.026 to the Texas Agricultural Code to
           give the TSSWCB responsibility to plan implement and manage programs and practices
           for abating agricultural and silvicultural nonpoint source pollution.

Water Quality Management Plans
           In 1993, the Texas Legislature took another major step toward controlling water
           pollution from agricultural and silvicultural nonpoint sources when it passed Senate
           Bill 503. SB 503 authorized the TSSWCB to assist agricultural and silvicultural
           producers in meeting the state's water quality goals and standards through a voluntary,
           incentive-based program. The Bill transferred much of the responsibility for regulating
           non-permitted, smaller animal feeding operations from the TCEQ to the TSSWCB. The
           move was designed to change the state's oversight of these operations from a
           traditional regulatory role to a technical assistance role.

           SB503 provided for the development and certification of water quality management
           plans (WQMPs). These plans are site specific plans for agricultural or silvicultural
           lands which include appropriate land treatment practices, production practices,
           management measures, technologies, or combinations thereof. A water quality


    TCEQ/TSSWCB joint publication SFR-68/04                                              267
      management plan is a site-specific document indicating when, where, and how to
      implement conservation practices following standards in the USDA Natural Resource
      Conservation Service Field Office Technical Guide. These plans are tailored to each
      landowner's conservation needs and management goals while ensuring adherence to
      state water quality laws.

      SB 503 legislation also set up a complaint resolution process and provided for a cost
      share assistance to help pay for some of the costs of installing water quality
      management practices. The provisions of the legislation are administered by the
      TSSWCB through and in cooperation with local soil and water conservation districts.
      The passage of Senate Bill 1339 during the 77th Session of the Texas Legislature
      expanded the water quality management program to include poultry facilities.

      Although authorized by SB 503, the TSSWCB has yet to develop a certified water
      quality management program for silvicultural activities.




268                                                TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX F CLEAN WATER ACT, §319
          [§319 added by PL 100-4]

          (a) State Assessment Reports. --

                  (1) Contents. -- The Governor of each State shall, after notice and opportunity
                  for public comment, prepare and submit to the Administrator for approval, a
                  report which:

                       (A) identifies those navigable waters within the State which, without
                       additional action to control nonpoint sources of pollution, cannot
                       reasonably be expected to attain or maintain applicable water quality
                       standards or the goals and requirements of this Act;

                       (B) identifies those categories and subcategories of nonpoint source or,
                       where appropriate, particular nonpoint sources which add significant
                       pollution to each portion of the navigable waters identified under
                       subparagraph (A) in amounts which contribute to such portion not meeting
                       such water quality standards or such goals and requirements;

                       (C) describes the process, including intergovernmental coordination and
                       public participation, for identifying best management practices and
                       measures to control each category and subcategory of nonpoint sources
                       and, where appropriate, particular nonpoint sources identified under
                       subparagraph (B) and to reduce, to the maximum extent practicable, the
                       level of pollution resulting from such category, subcategory, or source; and

                       (D) identifies and describes State and local programs for controlling
                       pollution added from nonpoint sources to, and improving the quality of,
                       each such portion of the navigable waters, including but not limited to those
                       programs which are receiving Federal assistance under subsections (h) and
                       (I).

                  (2) Information Used in Preparation. -- In developing the report required by this
                  section, the State (A) may rely upon information developed pursuant to 208,
                  §303(e), §304(F),§305(B), AND §314, and other information as appropriate, and (B)
                  may utilize appropriate elements of the waste treatment management plans
                  developed pursuant to §208(b) AND §303, to the extent such elements are consistent
                  with and fulfill the requirements of this section.

          (b) State Management Programs. --

                  (1) In General. -- The Governor of each State, for that State or in combination
                  with adjacent States, shall, after notice and opportunity for public comment,


   TCEQ/TSSWCB joint publication SFR-68/04                                                269
      prepare and submit to the Administrator for approval a management program
      which such State proposes to implement in the first four fiscal years beginning
      after the date of submission of such management program for controlling
      pollution added from nonpoint sources to the navigable waters within the State
      and improving the quality of such waters.

      (2) Specific Contents. -- Each management program proposed for
      implementation under this subsection shall include each of the following:

         (A) An identification of the best management practices and measures which
         will be undertaken to reduce pollutant loadings resulting from each
         category, subcategory, or particular nonpoint source designated under
         paragraph (1)(B), taking into account the impact of the practice on ground
         water quality.

         (B) An identification of programs (including, as appropriate, nonregulatory
         or regulatory programs for enforcement, technical assistance, financial
         assistance, education, training, technology transfer, and demonstration
         projects) to achieve implementation of the best management practices by the
         categories, subcategories, and particular nonpoint source designated under
         subparagraph (A).

         (C) A schedule containing annual milestones for (I) utilization of the
         program implementation methods identified in subparagraph (B), and (ii)
         implementation of the best management practices identified in
         subparagraph (A) by the categories, subcategories, or particular nonpoint
         sources designated under paragraph (1)(B). Such schedule shall provide for
         utilization of the best management practices at the earliest practicable date.

         (D) A certification of the attorney general of the State or States (or the chief
         attorney of any State water pollution control agency which has independent
         legal counsel) that the laws of the State or States, as the case may be,
         provide adequate authority to implement such management program or, if
         there is not such adequate authority, a list of such additional authorities as
         will be necessary to implement such management program. A schedule and
         commitment by the State or States to seek such additional authorities as
         expeditiously as practicable.

         (E) Sources of Federal and other assistance and funding (other than
         assistance provided under subsections (h) and (I)) which will be available in
         each of such fiscal years for supporting implementation of such practices
         and measures and the purposes for which such assistance will be used in
         each of such fiscal years.

         (F) An identification of Federal financial assistance programs and Federal
         development projects for which the State will review individual assistance
         applications or development projects for their effect on water quality

270                                         TCEQ/TSSWCB joint publication SFR-68/04
                    pursuant to the procedures set forth in Executive Order 12372 as in effect on
                    September 17, 1983, to determine whether such assistance applications or
                    development projects would be consistent with the program prepared under
                    this subsection; for the purposes of this subparagraph, identification shall
                    not be limited to the assistance programs or development projects subject to
                    Executive Order 12372 but may include any programs listed in the most
                    recent Catalog of Federal Domestic Assistance which may have an effect on
                    the purposes and objectives of the State's nonpoint source pollution
                    management program.

               (3) Utilization of Local and Private Experts. -- In development developing and
               implementing a management program under this subsection, a State shall, to the
               maximum extent practicable, involve local public and private agencies and
               organizations which have expertise in control of nonpoint sources of pollution.

               (4) Development on Watershed Basis. -- A State shall, to the maximum extent
               practicable, develop and implement a management program under this
               subsection on a watershed-by-watershed basis within such State.

       (c) Administrative Provisions. --

               (1) Cooperation Requirement. -- Any report required by subsection (a) and any
               management program and report required by subsection (b) shall be developed
               in cooperation with local, substate regional, and interstate entities which are
               actively planning for the implementation of nonpoint source pollution controls
               and have either been certified by the Administrator in accordance with §208,
               have worked jointly with the State on water quality management planning under
               §205(j), or have been designated by the State legislative body or Governor as
               water quality management planning agencies for their geographic areas.

               (2) Time Period for Submission of Reports and Management Programs. -- Each
               report and management program shall be submitted to the Administrator during
               the 18-month period beginning on the date of the enactment of this section.

       (d) Approval or Disapproval of Reports and Management Programs. --

               (1) Deadline. -- Subject to paragraph (2), not later than 180 days after the date
               of submission to the Administrator of any report or management program under
               this section (other than subsections (h), (I), and (k)), the Administrator shall
               either approve or disapprove such report or management program, as the case
               may be. The Administrator may approve a portion of a management program
               under this subsection. If the Administrator does not disapprove a report,
               management program, or portion of a management program in such 180-day
               period, such report, management program, or portion shall be deemed approved
               for purposes of this section.



TCEQ/TSSWCB joint publication SFR-68/04                                               271
             (2) Procedure for Disapproval. -- If, after notice and opportunity for public
             comment and consultation with appropriate Federal and State agencies and
             other interested persons, the Administrator determines that –

                 (A) the proposed management program or any portion thereof does not meet
                 the requirements of subsection (b)(2) of this section or is not likely to satisfy,
                 in whole or in part, the goals and requirements of the Act;

                 (B) adequate authority does not exist, or adequate resources are not
                 available, to implement such program or portion;

                 (C) the schedule for implementing such program or portion is not
                 sufficiently expeditious; or

                 (D) the practices and measures proposed in such program or portion are not
                 adequate to reduce the level of pollution in navigable waters in the State
                 resulting from nonpoint sources and to improve the quality of navigable
                 waters in the State; the Administrator shall within 6 months of receipt of the
                 proposed program notify the State of any revisions or modifications
                 necessary to obtain approval. The State shall thereupon have an additional
                 3 months to submit its revised management program and the Administrator
                 shall approve or disapprove such revised program within three months of
                 receipt.

             (3) Failure of State to Submit Report. -- If a Governor of State does not submit
             the report required by subsection (a) within the period specified by subsection
             (c)(2), the Administrator shall, within 30 months after the date of the enactment
             of this section, prepare a report for such State which makes the identifications
             required by paragraphs (1)(A) and (1)(B) of subsection (a). Upon completion of
             the requirement of the preceding sentence and after notice and opportunity for
             comment, the Administrator shall report to Congress on his actions pursuant to
             this section.

      (e) Local Management Programs; Technical Assistance. -- If a State fails to submit a
      management program under subsection (b) or the Administrator does not approve such
      a management program, a local public agency or organization which has expertise in,
      and authority to, control water pollution, resulting from nonpoint sources in any area
      of such State which the Administrator determines is of sufficient geographic size may,
      with approval of such State, request the Administrator to provide, and the
      Administrator shall provide, technical assistance to such agency or organization in
      developing for such area a management program which is described in subsection (b)
      and can be approved pursuant to subsection (d). After development of such
      management program, such agency or organization shall submit such management
      program to the Administrator for approval. If the Administrator approves such
      management program, such agency or organization shall be eligible to receive
      financial assistance under subsection (h) for implementation of such management
      program as if such agency or organization were a State for which a report submitted

272                                                  TCEQ/TSSWCB joint publication SFR-68/04
       under subsection (a) and a management program submitted under subsection (b) were
       approved under this section. Such financial assistance shall be subject to the same
       terms and conditions as assistance provided to a State under subsection (h).

       (f) Technical Assistance for States. -- Upon request of a State, the Administrator may
       provide technical assistance to such State in developing a management program
       approved under subsection (b) for those portions of the navigable waters requested by
       such State.

       (g) Interstate Management Conference. --

               (1) Convening of Conference; Notification; Purpose. -- If any portion of the
               navigable waters in any State which is implementing a management program
               approved under this section is not meeting applicable water quality standards or
               the goals and requirements of the Act as a result, in whole or in part, of
               pollution from nonpoint sources in another State, such State may petition the
               Administrator to convene, and the Administrator shall convene, a management
               conference of all States which contribute significant pollution resulting from
               nonpoint sources to such portion. If, on the basis of information available, the
               Administrator determines that a State is not meeting applicable water quality
               standards or the goals and requirements of this Act as a result, in whole or in
               part, of significant pollution from nonpoint sources in another State, the
               administrator shall notify such State. The Administrator may convene a
               management conference under this paragraph not later than 180 days after
               giving such notification, whether or not the State which is not meeting such
               standards requests such conference. The purpose of such conference shall be to
               develop an agreement among such States to reduce the level of pollution in such
               portion resulting from nonpoint sources and to improve the water quality of
               such portion. Nothing in such agreement shall supersede or abrogate rights to
               quantities of water which have been established by interstate water compacts,
               Supreme Court decrees, or State water laws. This subsection shall not apply to
               any pollution which is subject to the Colorado River Basin Salinity control Act.
               The requirement that the Administrator convene a management conference shall
               not be subject to the provisions of §505 of this Act.

               (2) State Management Program Requirement. -- To the extent that the States
               reach agreement through such conference, the management programs of the
               States which are parties to such agreements and which contribute significant
               pollution to the navigable water or portions thereof not meeting applicable
               water quality standards or goals and requirements of the Act will be revised to
               reflect such agreement. Such a management program shall be consistent with
               Federal and State law.

       (h) Grant Program. --

               (1) Grants for Implementation of Management Programs. -- Upon application of
               a State for which a report submitted under subsection (a) and a management

TCEQ/TSSWCB joint publication SFR-68/04                                              273
      program submitted under subsection (b) is approved under this section, the
      Administrator shall make grants, subject to such terms and conditions as the
      Administrator considers appropriate, under this subsection to such State for the
      purpose of assisting the State in implementing such management program.
      Funds reserved pursuant to §205(j)(5) of this Act may be used to develop and implement
      such management program.

      (2) Applications. -- An application for a grant under this subsection in any fiscal
      year shall be in such form and shall contain such other information as the
      Administrator may require, including an identification and description of the
      best management practices and measures which the State proposes to assist,
      encourage, or require in such year with the Federal assistance to be provided
      under the grant.

      (3) Federal Share. -- The Federal share of the cost of each management
      program implemented with Federal assistance under this subsection in any
      fiscal year shall not exceed 60 percent of the cost incurred by the State in
      implementing such management program and shall be made on condition that
      the non-Federal share is provided from non-Federal sources.

      (4) Limitation on Grant Amounts. -- Notwithstanding any other provision of this
      subsection, not more than 15 percent of the amount appropriated to carry out
      this subsection may be used to make grants to any one State, including any
      grants to any local public agency or organization with authority to control
      pollution from nonpoint sources in any area of such State.

      (5) Priority for Effective Mechanisms. -- For each fiscal year beginning after September 30,
      1987, the Administrator may give priority in making grants under this subsection, and shall give
      consideration in determining the Federal share of any such grant, to States which have
      implemented or are proposing to implement management programs which will --

          (A) control particularly difficult or serious nonpoint source pollution
          problems, including, but not limited to, problems resulting from mining
          activities;

          (B) implement innovative methods or practices for controlling nonpoint
          sources of pollution, including regulatory programs where the
          Administrator deems appropriate;

          (C) control interstate nonpoint source pollution problems; or

          (D) carry out ground water quality protection activities which the
          Administrator determines are part of a comprehensive nonpoint source
          pollution control program, including research, planning, ground water
          assessments, demonstration programs, enforcement, technical assistance,
          education, and training to protect ground water quality from nonpoint
          sources of pollution.


274                                                TCEQ/TSSWCB joint publication SFR-68/04
               (6) Availability for Obligation. -- The funds granted to each State pursuant to
               this subsection in a fiscal year shall remain available for obligation by such
               State for the fiscal year for which appropriated. The amount of any such funds
               not obligated by the end of such fiscal year shall be available to the
               Administrator for granting to other States under this subsection in the next fiscal
               year.

               (7) Limitation on Use of Funds. -- States may use funds from grants made
               pursuant to this section for financial assistance to persons only to the extent that
               such assistance is related to the costs of demonstration projects.

               (8) Satisfactory Progress. -- No grant may be made under this subsection in any
               fiscal year to a State which in the preceding fiscal year received a grant under
               this subsection unless the Administrator determines that such State made
               satisfactory progress in such preceding fiscal year in meeting the schedule
               specified by such State under subsection (b)(2).

               (9) Maintenance of Effort. -- No grant may be made to a State under this
               subsection in any fiscal year unless such State enters into such agreements with
               the Administrator as the Administrator may require to ensure that such State
               will maintain its aggregate expenditures from all other sources for programs for
               controlling pollution added to the navigable waters in such State from nonpoint
               sources and improving the quality of such waters at or above the average level
               of such expenditures in its two fiscal years preceding the date of enactment of
               this subsection.

               (10) Request for Information. -- The Administrator may request such
               information, data, and reports as he considers necessary to make the
               determination of continuing eligibility for grants under this section.

               (11) Reporting and Other Requirements. -- Each State shall report to the
               Administrator on an annual basis concerning (a) its progress in meeting the
               schedule of milestones submitted pursuant to subsection (b)(2)(c) of this section,
               and (B) to the extent that appropriate information is available, reductions in
               nonpoint source pollutant loading and improvements in water quality for those
               navigable waters or watersheds within the State which were identified pursuant
               to subsection (a)(1)(a) of this section resulting from implementation of the
               management program.

               (12) Limitation on Administrative Costs. -- For purposes of this subsection,
               administrative costs in the form of salaries, overhead, or indirect costs for
               services provided and charged against activities and programs carried out with
               a grant under this subsection shall not exceed in any fiscal year 10 percent of
               the amount of the grant in such year, except that costs of implementing
               enforcement and regulatory activities, education, training, technical assistance,
               demonstration projects, and technology transfer programs shall not be subject
               to this limitation.

TCEQ/TSSWCB joint publication SFR-68/04                                                 275
      (I) Grants for Protecting Groundwater Quality. --

             (1) Eligible Applicants and Activities. -- Upon application of a State for which a
             report submitted under subsection (a) and a plan submitted under subsection (b)
             is approved under this section, the Administrator shall make grants under this
             subsection to such State for the purpose of assisting such State in carrying out
             groundwater quality protection activities which the Administrator determines
             will advance the State toward implementation of a comprehensive nonpoint
             source pollution control program. Such activities shall include, but not be
             limited to, research planning, groundwater assessments, demonstration
             programs, enforcement, technical assistance, education and training to protect
             the quality of groundwater and to prevent contamination of groundwater from
             nonpoint sources of pollution.

             (2) Applications. -- An application for a grant under this subsection shall be in
             such form and shall contain such information as the Administrator may require.

             (3) Federal Share; Maximum Amount. -- The Federal share of the cost of
             assisting a State in carrying out groundwater protection activities in any fiscal
             year under this subsection shall be 50 percent of the costs incurred by the State
             in carrying out such activities, except that the maximum amount of Federal
             assistance which any State may receive under this subsection in any fiscal year
             shall not exceed $150,000.

             (4) Report. -- The Administrator shall include in each report transmitted under
             subsection (m) a report on the activities and programs implemented under this
             subsection during the preceding fiscal year.

      (j) Authorization of Appropriations. -- There is authorized to be appropriated to carry
      out subsections (h) and (I) not to exceed $70,000,000 for fiscal year 1988,
      $100,000,000 per fiscal year for each of fiscal years 1989 and 1990, and $130,000,000
      for fiscal year 1991; except that for each of such fiscal years not to exceed $7,500,000
      may be made available to carry out subsection (I). Sums appropriated pursuant to this
      subsection shall remain available until expended.
      (k) Consistency of Other Programs and Projects With Management Programs. -- The
      Administrator shall transmit to the Office of Management and Budget and the
      appropriate Federal departments and agencies a list of those assistance programs and
      development projects identified by each State under subsection (b)(2)(F) for which
      individual assistance applications and projects will be reviewed pursuant to the
      procedures set forth in Executive Order 12372 as in effect on September 17, 1983, the
      concerns of the State regarding the consistency of such applications or projects with the
      State nonpoint source pollution management program.

      (l) Collection of Information. -- The Administrator shall collect and make available,
      through publications and other appropriate means, information pertaining to
      management practices and implementation methods, including, but not limited to, (1)

276                                                TCEQ/TSSWCB joint publication SFR-68/04
       information concerning the costs and relative efficiencies of best management practices
       for reducing nonpoint source pollution; and (2) available data concerning the
       relationship between water quality and implementation of various management
       practices to control nonpoint sources of pollution.

       (m) Reports of Administrator. --

               (1) Annual Reports. -- Not later than January 1, 1988, and each January 1
               thereafter, the Administrator shall transmit to the Committee on Public Works
               and Transportation of the House of Representatives and the Committee on
               Environment and Public Works of the Senate, a report for the preceding fiscal
               year on the activities and programs implemented under this section and the
               progress made in reducing pollution in the navigable waters resulting from
               nonpoint sources and improving the quality of such waters.

               (2) Final Report. -- Not later than January 1, 1990, the Administrator shall
               transmit to Congress a final report on the activities carried out under this
               section. Such report, at a minimum, shall –

                    (A) describe the management programs being implemented by the States by
                    types and amount of affected navigable waters, categories and
                    subcategories of nonpoint sources, and types of best management practices
                    being implemented;

                    (B) describe the experiences of the States in adhering to schedules and
                    implementing best management practices;

                    (C) describe the amount and purpose of grants awarded pursuant to
                    subsections (h) and (I) of this section;

                    (D) identify, to the extent that information is available, the progress made in
                    reducing pollutant loads and improving water quality in the navigable
                    waters;

                    (E) indicate what further actions need to be taken to attain and maintain in
                    those navigable waters (I) applicable water quality standards; and (ii) the
                    goals and requirements of this Act;

                    (F) include recommendations of the Administrator concerning future
                    programs (including enforcement programs) for controlling pollution from
                    nonpoint sources; and

                    (G) identify the activities and programs of departments, agencies, and
                    instrumentalities of the United States which are inconsistent with the
                    management programs submitted by the States and recommend
                    modifications so that such activities and programs are consistent with and
                    assist the States in implementation of such management programs.

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      (n) Set Aside for Administrative Personnel. -- Not less than 5 percent of the funds
      appropriated pursuant to subsection (j) for any fiscal year shall be available to the
      Administrator to maintain personnel levels at the Environmental Protection Agency at
      levels which are adequate to carry out this section in such year.




278                                               TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX G FEDERAL CONSISTENCY
           §319(b)(2)(F) calls for each State Management Program to contain an identification of
           federal financial assistance programs and federal development projects for which the
           state will review individual assistance applications or development projects for their
           effect on water quality, to determine whether such activities would be consistent with
           the State Management Program. The Texas Review and Comment System (TRACS) will
           be utilized to fulfill this requirement. Consistency review of urban, non-agricultural,
           non-silvicultural programs is the responsibility of the TCEQ. Consistency of
           agricultural and silvicultural programs is reviewed by the TSSWCB.

TCEQ Review of Federal Assistance Programs
           This list of Federal Assistance programs was developed from the 2004 Catalog of
           Federal Domestic Assistance for potential use by the TCEQ in the development and
           administration of its NPS Management Program. Some of these programs may be
           reviewed by the TCEQ for consistency with its NPS Management Program. Any federal
           programs which the State identifies as inconsistent with its management program will
           be brought to the attention of the EPA. No inconsistent programs have been identified
           at this time.

Department of Commerce
           Economic Development Administration
           11.300    Economic Development - Grants for Public Works and
                  Economic Development Facilities
           11.302    Economic Development - Support for Planning
                  Organizations
           11.303    Economic Development - Technical Assistance
           11.307    Economic Adjustment Assistance

           National Oceanic and Atmospheric Administration
           11.405   Anadromous Fish Conservation Act Program
           11.407   Interjurisdictional Fisheries Act of 1986
           11.415   Fisheries Finance Program
           11.417   Sea Grant Support
           11.419   Coastal Zone Management Administration Awards
           11.420   Coastal Zone Management Estuarine Research Reserve
           11.426 Financial Assistance for National Centers for Coastal Ocean Science
           11.427 Fisheries Development and Utilization Research and Development Grants
                   and Cooperative Agreements Program
           11.429 Marine Sanctuary Program
           11.441 Regional Fishery Management Councils




    TCEQ/TSSWCB joint publication SFR-68/04                                             279
Department of Defense

           Department of the Army, Office of the Chief of Engineers
           12.100 Aquatic Plant Control
           12.101 Beach Erosion Control Projects
           12.104 Flood Plain Management Services
           12.105 Protection of Essential Highways, Highway Bridge Approaches and Public
                  Works
           12.106 Flood Control Projects
           12.107 Navigation Projects
           12.108 Snagging and Clearing for Flood Control
           12.109 Protection, Clearing and Straightening Channels
           12.110 Planning Assistance to States
           12.114 Collaborative Research and Development

           Office of the Assistant Secretary (Economic Security)
           12.612 Community Base Reuse Plans
           12.613 Growth Management Planning Assistance

Department of Housing and Urban Development
           Housing
           14.112 Mortgage Insurance for Construction or Substantial Rehabilitation of
                  Condominium Projects
           14.117 Mortgage Insurance - Homes
           14.126 Mortgage Insurance - Cooperative Projects
           14.127 Mortgage Insurance - Manufactured Home Parks

           Community Planning and Development
           14.218 Community Development Block Grants/Entitlement
                  Grants
           14.219 Community Development Block Grants/Small Cities
                  Program

           Public and Indian Housing
           14.862 Indian Community Development Block Grant Program

Department of the Interior
           Bureau of Land Management
           15.214 Non-sale Disposals of Mineral Material
           15.225 Recreation Resource Management




     280                                             TCEQ/TSSWCB joint publication SFR-68/04
           Office of Surface Mining Reclamation and Enforcement
           15.250 Regulation of Surface Coal Mining and Surface Effects
                    of Underground Coal Mining
           15.252 Abandoned Mine Land Reclamation (AMLR) Program

           Fish and Wildlife Service
           15.605 Sport Fish Restoration
           15.611 Wildlife Restoration
           15.614 Coastal Wetlands Planning, Protection and
                   Restoration Act
           15.615 Cooperative Endangered Species Conservation Fund

           Geological Survey
           15.805 Assistance to State Water Resources Research
                  Institutes
           15.808 U. S. Geological Survey - Research and Data
                  Acquisition

           National Park Service
           15.916 Outdoor Recreation - Acquisition, Development and
                   Planning
           15.919 Urban Park and Recreation Recovery Program

Department of Transportation
           Federal Aviation Administration
           20.106 Airport Improvement Program

           Federal Highway Administration
           20.205 Highway Planning and Construction
           20.219 Recreational Trails Program

           Federal Railroad Administration
           20.312 High Speed Ground Transportation - Next Generation High Speed Rail
                   Program

           Federal Transit Administration
           20.500 Federal Transit Capital Investment Grants
           20.507 Federal Transit Formula Grants
           20.509 Formula Grants for Other Than Urbanized Areas

           Maritime Administration
           20.801 Development and Promotion of Ports and Intermodal Transportation
           20.812 Construction Reserve Fund

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General Services Administration
          39.002   Disposal of Federal Surplus Real Property

Small Business Administration
          59.012   Small Business Loans

Environmental Protection Agency
          Office of Air and Radiation
          66.001 Air Pollution Control Program Support

          Office of Water
          66.419 Water Pollution Control - State and Interstate
                   Program Support
          66.424 Surveys, Studies, Demonstrations and Special Purpose - §1442 of the Safe
                   Drinking Water Act
          66.433 State Underground Water Source Protection
          66.439 Targeted Watershed Initiative
          66.454 Water Quality Management Planning
          66.456 National Estuary Program
          66.458 Capitalization Grants for Clean Water State
                   Revolving Funds
          66.460 Nonpoint Source Implementation Grants
          66.461 Wetland Program Development Grants
          66.463 Water Quality Cooperative Agreements
          66.468 Capitalization Grants for Drinking Water State
                   Revolving Funds
          66.472 Beach Monitoring and Notification Program Implementation Grants
          66.474 Water Protection Grants to the States
          66.475 Gulf of Mexico Program
          66.476 Vulnerability Assessments and Related Security Improvements at Large
                   Drinking Water Utilities
          66.477 Vulnerability Assessments and Related Security Improvements at Large
                   Privately-Owned Community Drinking Water Utilities
          66.478 Water Security Training and Technical Assistance
                   Grant Program

          Offices of Air and Radiation; Water; Environmental Justice;
          Environmental Information; Enforcement and Compliance Assurance;
          Pesticides, Prevention and Toxic Substances; and Solid Waste and
          Emergency Response

          66.500   Environmental Protection - Consolidated Research
          66.600   Environmental Protection Consolidated Grants
                   Program Support
    282                                              TCEQ/TSSWCB joint publication SFR-68/04
           66.605     Performance Partnership Grants

           Office of Enforcement and Compliance Assurance
           66.700 Consolidated Pesticide Enforcement Cooperative
                    Agreements

           Office of Prevention, Pesticides and Toxic Substances
           66.708 Pollution Prevention Grants Program

           Office of Solid Waste and Emergency Response
           66.805 Leaking Underground Storage Tank Trust Fund Program

           Office of Research and Development
           66.807 Superfund Innovative Technology Evaluation Program

           Office of Environmental Education
           66.951 Environmental Education Grants

Department of Energy
           Civilian Radioactive Waste Management
           81.065 Nuclear Waste Disposal Siting

           Office of Environmental Management
           81.104 Office of Technology Development and Deployment for Environmental
                    Management

TCEQ Review of Federal Development Projects
           The following is a list of the types of plans and development projects that are initiated
           and managed by Federal agencies which may have an impact on the State's nonpoint
           source management program. Not all of the activities listed below will be eligible for
           §319 federal consistency reviews pursuant to Executive Order 12372.

USDA, Forest Service
           Forest Plans
           Resource Area Analyses
           Integrated Resource Management Plans
           Timber Activities/Sales
           Range Activities/Game Range Analysis
           Chemicals/Herbicides
           Area Analysis/Cumulative Impacts Analysis
           Recreation Development
           Transportation Plans

    TCEQ/TSSWCB joint publication SFR-68/04                                                283
          Soil and Water Management
          Water Uses and Development
          Soil and Water Improvement Projects
          Public Water Supply Watershed Management
          Hydrologic Modification
          Wetlands Protection
          "Every Species Counts" - recovery of threatened/endangered flora, fauna, fish, wildlife,
          invertebrates, plants
          Watershed, Fish, Wildlife, Air and Rare Plants Program
          Riparian Management and Restoration and Wetlands Habitats Programs
          Minerals Exploration and Development
          Fuels Management
          Applications for Permits to Drill
          Oil and Gas Leasing/Reclamation Plans
          Hydropower Licensing Activity in Coordination with Federal Energy Regulatory
          Commission (FERC)/Special Use Permitting
          ORV (Off-road Vehicles) Activities
          Forest Fire Protection
          Soil and Water Monitoring Program
          Allotment Management Planning and Administration
          Road Construction and Maintenance
          Municipal Watershed Management Program
          Floodplain Modifications

USDA, Natural Resources Conservation Service/Farm Service
Agency
          Small Watershed Program

Department of the Interior, Bureau of Land Management
          Watershed Projects
          Mineral Exploration and Development
          Coal, Oil and Gas Leasing
          Coal Reclamation
          Road Restoration, Upgrades and Closures
          Timber Activities
          Rangeland Management Program
          Chemical Pest Control/Pesticide Use Report
          "Bring Back the Natives" - Conservation of Native Fishes
          Area Analysis/Cumulative Impacts
          Resource Management Plans
          Wetlands Protection
          Riparian Management Areas and Riparian Reserves
          Hydrologic Units Mapping
          Transportation Plans
          Areas of Critical Environmental Concern (ACEC) Plans

    284                                                TCEQ/TSSWCB joint publication SFR-68/04
Department of the Interior, Bureau of Reclamation
            National Desalination Clearinghouse
            Fisheries Applications Research
            Flood Hydrology
            Geotechnical Engineering
            Hydroelectric Research
            National Irrigation Water Quality Program (NIWQP)
            Remote Sensing and GIS
            Resource Management and Planning
            River Systems and Meteorology
            Sedimentation and River Hydraulics
            Stream Corridor Restoration
            Water Conservation Field Services Program
            Water Operations - Upper and Lower Colorado River Regions

Department of the Interior, Fish and Wildlife Service
            Management of National Wildlife Conservation - Refuges and Proposed Acquisitions

Department of the Interior, Surface Mining
            Regulation of active mines and reclamation of abandoned mines
            Abandoned Mine Lands (AML) Program

Department of Defense, Defense Installations
            Land Management Plans
            Location, design and acquisition of new or expanded defense installations

Department of Defense, Corps of Engineers
            Dredging
            Channel Improvement
            Breakwaters
            Harbors and navigation channels
            Erosion control structures
            Shoreline Protection - Beach Replenishment
            Regulation/Permitting - including wetlands
            Dams or flood control works
            Ice management practices
            Land acquisition for spoil disposal or other purposes
            Selection of open water disposal sites




     TCEQ/TSSWCB joint publication SFR-68/04                                            285
Department of Transportation, Federal Aviation Administration
          Location, design, construction, maintenance and demolition of Federal aids to air
          navigation

Department of Transportation, U.S. Coast Guard
          Location, design, construction, or enlargement of Coast Guard stations, bases, and
          lighthouses
          Location, placement, or removal of navigation devices which are not part of the routine
          operations under the Aids to Navigation Program
          Expansion, abandonment, designation of anchorages, lighting areas, or shipping lanes
          and ice management practices and activities

General Services Administration
          Acquisition, location, and design of proposed Federal government property or
          buildings, whether leased or owned by the Federal government




    286                                                TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX H FUNDING
           Funding sources available to support programs related to nonpoint source pollution
           include:

Federal
           #          CWA §104(b)(3)
           #          CWA §106 Funds
           #          CWA §319(h) Grant Funds
           #          CWA §604(b) Funds
           #          FIFRA Funds
           #          Safe Drinking Water Act Grant Funds
           #          Solid Waste Disposal Act, §8001
           #          Superfund
           #          Non-game and Endangered Species Fund

STATE
           #          STATE GENERAL REVENUE FUNDS
           #          WATER QUALITY PERMIT FEES
           #          WATER RIGHTS PERMIT FEES
           #          STATE REVOLVING FUND
           #          TEXAS WATER DEVELOPMENT BOARD LOAN PROGRAMS AND
                      DEVELOPMENT FUNDS
           #          GENERAL LAND OFFICE OIL SPILL FUND
           #          OSSF PERMIT AND LICENSE FEES
           #          FUND 0270, SOLID WASTE TIPPING FEES
           #          FUND 5500, STATE HAZARDOUS AND SOLID WASTE REMEDIATION FEES
           #          SOLID WASTE FUND
           #          FUND 4680, TEXAS IRRIGATORS FUND
           #          FUND 0790, WATER WELL DRILLERS
           #          TEXAS CONSERVATION FUND
           #          WILDSCAPES FEES AND POSTER AND STAMP SALES
           #          RIVER AUTHORITY FUNDS


SPECIFIC FUNDING FOR TCEQ PROGRAMS
           The Nonpoint Source Program Team is funded by Clean Water Act §319(h) and by
           State General Revenue Funds.



    TCEQ/TSSWCB joint publication SFR-68/04                                           287
      The Clean Rivers Program is supported by the water quality fees from wastewater
      discharge permits and water rights permits. Federal funding for Water Quality
      Management Plans is provided by EPA through a 1% reserve of annual allocated funds
      to the Texas Water Development Board for State Revolving Fund (SRF) loans. Of this
      amount, 40% is passed through to the seven designated area regional planning
      agencies.

      Standards development and implementation and wetlands certification are funded by
      §106 of the Clean Water Act and by State General Revenue Funds.

      The ongoing activities of the Surface Water Quality Monitoring Team are funded by
      §106 and State General Revenue Funds.

      Water Quality Modeling is funded by Clean Water Act 604(b) funds and State General
      Revenue.

      State General Revenue Funds, FEMA, and Clean Water Act §319(h) funds support the
      Resource Protection Team, Interstate Compacts Team, and Water Rights Permit Team
      (Water Rights Permitting and Availability Section) activities.

      The Texas Watch Program (volunteer monitoring) is currently funded by Clean Water
      Act §319(h).

      The Groundwater Planning and Assessment Team is funded from §106 ground water
      funds, FIFRA funds, and State General Revenue Funds.

      The Galveston Bay Estuary Program is a continuation of the National Estuary Program
      receiving funding under §320 fo the Clean Water Act, State General Revenue Funds,
      Clean Water Act §104(b)(3) funds, and limited contributions from local governments.

      Funding for the Coastal Bend Bays and Estuaries Program comes from Clean Water
      Act Sections 104(b)(3) and 320 funds and State General Revenue Funds.

      Funding for the Source Water Assessment and Protection Program is from the Drinking
      Water State Revolving Fund. This fund was established under §1452 by Congress to
      achieve or maintain compliance with Safe Drinking Water Act requirements.

      Funding for the Small Towns Environmental Program comes from two self-help funds:
      one administered by the Office of Rural Community Affairs, and one from the Texas
      Water Development Board.

      Funding for the On-Site Sewage Facilities program comes from the Clean Water Act
      §319 portion of the Performance Partnership Grant awarded by EPA. However,
      legislation has also provided for the following methods of funding for continued
      program operations:



288                                              TCEQ/TSSWCB joint publication SFR-68/04
           #          Fees may be collected for all OSSF permits issued by TCEQ. The fees
                      collected by the authorized agents are not controlled by the TCEQ and
                      vary between entities.
           #          OSSF installers are required to pay a fee to obtain a license, and a
                      yearly renewal fee to maintain the license.

           Clean Texas- Cleaner World funds come from Fund 0270, solid waste tipping fees, and
           CWA Sections 319(h) and 106 grants.

           Texas Country Cleanups and the Lake and River Cleanup are funded from the Solid
           Waste Fund. Fund 5500, from hazardous waste generation fees, provides funds for the
           Agricultural Waste Pesticide Program and the Household Hazardous Waste Program.

           The Used Oil and Used Oil Filter Recycling Program is funded by revenues in the Used
           Oil Recycling Fund.

           Funding for the Emergency Response Program, the Superfund Site Discovery and
           Assessment Team, and the Natural Resource Damage Assessment Team comes from
           Fund 5500, State Hazardous and the Solid Waste Remediation Fee Fund.

           The Illegal Disposal Program is funded under the Solid Waste Disposal Act, §8001, and
           with State General Revenue Funds.

           Occupational Certification Program funding comes from the following areas:
           #        Landscape Irrigation: Fund 4680
           #        On-site Sewage Facility Installation: General Revenue Fund 0010
           #        Water Well Drilling: Fund 0790
           #        Water Pump Installation: Fund 0790

           Funding for the Edwards Aquifer Program comes from State funds supplemented by
           319 grant funding.

Funding Sources for Agricultural & Silvicultural Nonpoint
Source Pollution Abatement
           In Texas, planning, implementing, and managing programs and practices for the
           abatement of agricultural and silvicultural nonpoint source pollution is the
           responsibility of the Texas State Soil and Water Conservation Board. However, other
           organizations and their programs play major roles. Because nonpoint source control is
           costly, efforts in Texas tend to rely on cooperation and coordination to make use of
           existing resources where possible.

           Nonpoint source management programs utilize existing information, education, and
           demonstration capabilities to educate and inform farmers, ranchers, and other
           producers of the potential for nonpoint source pollution to occur as a result of

    TCEQ/TSSWCB joint publication SFR-68/04                                             289
      agricultural or silvicultural activities. Technical assistance programs, both state and
      federal, are used to assist in the implementation of best management practices
      contained in nonpoint source management programs. Cost-share incentive programs
      are utilized where applicable and available to provide incentives for installation of best
      management practices. Research organizations are relied upon to provide needed
      research to advance the effectiveness of nonpoint source management programs and
      keep pace with advances in agricultural and silvicultural production methods. Loan
      programs, where applicable, help producers implement best management practices.
      Where necessary and desirable, new and innovative solutions are sought to address
      problems that cannot be handled by existing programs.

      Below is a brief description of the major funding sources used in Texas to address
      agricultural and silvicultural nonpoint source pollution:

      #         Water Quality Management Plan Program - Cost-share assistance for
                water quality benefits is available through the TSSWCB Water Quality
                Management Plan Program (a.k.a. Senate Bill 503 Program).
      #         Nonpoint Source Implementation Grants (319 Program) - The 319
                program administered by the TSSWCB provides funding to implement
                projects to abate agricultural and silvicultural nonpoint source
                pollution.
      #         Watershed Protection and Flood Prevention Program - Projects
                eligible for funding through this NRCS administered program include
                watershed protection, flood prevention, erosion and sediment control,
                water supply, water quality, fish and wildlife habitat enhancement
                wetlands creation and restoration, and public recreation in
                watersheds of 250,000 or fewer acres.
      #         Wetlands Reserve Program (WRP) - WRP is a voluntary program
                administered by NRCS that provides technical and financial
                assistance to eligible landowners to enhance degraded wetlands in
                exchange for retiring marginal land from agriculture.
      #         Environmental Quality Incentives Program (EQIP) - EQIP is a
                voluntary conservation program administered by NRCS that provides
                farmers and ranchers with financial and technical assistance to install
                or implement structural and management conservation practices to
                address local natural resource concerns on eligible agricultural land.
      #         Agricultural Loan Program (Farm Loan Program) - FSA makes direct
                and guaranteed farm ownership and operating loans to farmers and
                ranchers who are temporarily unable to obtain private, commercial
                credit for land purchases, livestock, equipment, feed, seed and
                supplies.
      #         Conservation Reserve Program (CRP) - CRP is a voluntary
                conservation program administered by FSA, with NRCS providing
                technical assistance, that provides technical and financial assistance
                to eligible farmers and ranchers to address soil, water, and related

290                                                 TCEQ/TSSWCB joint publication SFR-68/04
                  resource concerns through conversion of sensitive acreage to
                  vegetative cover in return for annual rental payments.
       #          Creekside Conservation Program - A partnership between Lower
                  Colorado River Authority, NRCS and local SWCDs to provide
                  technical and financial assistance to reduce sedimentation and
                  nonpoint source pollution on privately owned land in 11 counties in
                  the Colorado River Basin.
       #          Forest Land Enhancement Program (FLEP) - FLEP, administered by
                  the Texas Forest Service, provides financial, technical, educational
                  and related assistance to private landowners in actively managing
                  their land.
       #          Coastal Zone Management Administration/Implementation Awards -
                  Funds are available to support NPS projects in the coastal
                  management zone and to implement agricultural and silvicultural
                  management measures in the Texas Coastal Nonpoint Pollution
                  Control Plan.
       #          Clean Water State Revolving Funds - This program, administered by
                  the TWDB, provides incorporated political subdivisions (Cities,
                  Towns) with the authority to own and operate a wastewater system. It
                  also provides incorporated political subdivisions, unincorporated
                  political subdivisions (Counties, River Authorities, Water Supply
                  Districts, Independent School Districts), and private individuals or
                  non-profit entities (for nonpoint source pollution control loans only)
                  loans for the financing, planning, design and construction of projects
                  for wastewater treatment facilities, reuse and recycle facilities,
                  collection systems, storm water pollution controls, and
                  implementation of nonpoint source pollution controls.




TCEQ/TSSWCB joint publication SFR-68/04                                               291
APPENDIX I SUMMARY OF PUBLIC RESPONSES

         A public notice of final review was posted in the Texas Register on July 15, 2005 for a
         30 day period, which ended on August 14, 2005. No comments were received during
         this public final review period.




   292                                                TCEQ/TSSWCB joint publication SFR-68/04
APPENDIX J ACRONYMS AND ABBREVIATIONS
          AAH             Adopt-a-Highway
          AFOs            animal feeding operations
          ASDWA           Association of State Drinking Water Administrators
          ASIWPCA         Association for State and Interstate Water Pollution Control
                          Administrators
          AST             aboveground storage tank
          AWWA            American Water Works Association
          BEG             Bureau of Economic Geology
          BEIF            Border Environment Infrastructure Fund
          BMPs            best management practices
          BRC             Bureau of Radiation Control
          BSEACD          Barton Springs/Edwards Aquifer Conservation District
          CAFOs           concentrated animal feeding operations
          CBBEP           Coastal Bend Bays & Estuaries Program
          CCC             Commodity Credit Corporation
          CCC             Coastal Coordination Council
          CCMP            Comprehensive Conservation and Management Plan
          CFR             Code of Federal Regulations
          COGs            Councils of Government
          COMAPA          Comision Municipal de Agua Potable y Alcantarillado
          CMP             Coastal Management Program
          CRP             Clean Rivers Program
          CSG             Council of State Governments
          CWA             Clean Water Act
          CWSRF           Clean Water State Revolving Fund
          CZMA            Coastal Zone Management Act
          DFE             Dallas Floodway Extension
          DSHS            Texas Department of State Health Services
          DMWT            Don't Mess with Texas
          DoC             Drop-off Center
          DOPA            Dairy Outreach Program Areas
          EDAP            Economically Distressed Areas Program
          EMPACT          Environmental Monitoring for Public Access and Community Tracking
          EPWU            City of El Paso Water Utilities
          EQIP            Environmental Quality Incentives Program
          FIFRA           Federal Insecticide, Fungicide and Rodenticide Act
          FLEP            Forest Land Enhancement Program
          GBEP            Galveston Bay Estuary Program
          GCRP            Gulf of Mexico Community-Based Restoration Program
          GLO             Texas General Land Office
          GPC             Texas Groundwater Protection Committee
          GWPC            Ground Water Protection Council
          HHW             household hazardous waste
          IBWC            International Boundary Water Commission

   TCEQ/TSSWCB joint publication SFR-68/04                                         293
      ISD       independent school district
      iSWM      integrated Storm Water Management
      KAST      Kills and Spills Team
      KTB       Keep Texas Beautiful
      LCRA      Lower Colorado River Authority
      LPST      leaking petroleum storage tank
      MCL's     maximum contaminant levels
      MDL       minimum detection level
      MSW       municipal solid waste
      MxIBWC    Mexico International Boundary Water Commission
      NADB      North American Development Bank
      NAFTA     North American Free Trade Agreement
      NAWQA     National Water Quality Assessment Program
      NCTCOG    North Central Texas Council of Governments
      NFIP      National Flood Insurance Program
      NIPF      nonindustrial private forest
      NLIWTP    Nuevo Laredo International Wastewater Treatment Plant
      NNRCF     National Natural Resources Conservation Foundation
      NOAA      National Oceanic and Atmospheric Administration
      NPDES     National Pollutant Discharge Elimination System
      NPS       nonpoint source pollution
      NRCS      Natural Resources Conservation Service
      OAG       Texas Office of Attorney General
      OFCU      Oil Field Clean Up
      OSPR      Oil Spill Prevention and Response
      OSPRA     Oil Spill Prevention and Response Act of 1991
      OSSF      on-site sewage facilities
      PCBs      polychlorinated biphenyls
      PMP       Pesticide Management Plan
      PWE       Public Works and Engineering
      RG/RBBC   Rio Grande/Rio Bravo Basin Coalition
      RCRA      Resource Conservation and Recovery Act
      RRC       Railroad Commission of Texas
      SDWA      Safe Drinking Water Act
      SEP       supplemental environmental project
      SPCB      Structural Pest Control Board
      SWA       source water assessment
      SWCDs     Soil and Water Conservation Districts
      SWP       source water protection
      TAES      Texas Agricultural Experiment Station
      TAGD      Texas Alliance of Groundwater Districts
      TCC       Texas Chemical Council
      TCE       Texas Cooperative Extension
      TCEQ      Texas Commission on Environmental Quality
      TDA       Texas Department of Agriculture
      TDLR      Texas Department of Licensing and Regulation

294                                         TCEQ/TSSWCB joint publication SFR-68/04
       TDS             Total dissolved solids
       TES             Teaching Environmental Sciences
       TFA             Texas Forestry Association
       TFS             Texas Forest Service
       TGPC            Texas Groundwater Protection Committee
       TIAER           Texas Institute for Applied Environmental Research
       TMDL            Total Maximum Daily Load
       TPDES           Texas Pollutant Discharge Elimination System
       TPWD            Texas Parks and Wildlife Department
       TSSWCB          Texas State Soil and Water Conservation Board
       TSWQS           Texas Surface Water Quality Standards
       TWC             Texas Water Code
       TWDB            Texas Water Development Board
       TWPC            Texas Watershed Protection Committee
       TxDOT           Texas Department of Transportation
       UCRA            Upper Colorado River Authority
       UIC             underground injection control
       USDW            underground sources of drinking water
       USGS            United States Geological Survey
       USIBWC          United States International Boundary Water Commission
       UST             underground storage tank
       VCP             Voluntary Cleanup Program
       WET             Water Education for Teachers
       WPAP            water pollution abatement plan
       WQMP            water quality management plans
       WRP             Wetlands Reserve Program




TCEQ/TSSWCB joint publication SFR-68/04                                        295
APPENDIX K WEB SITES OF INTEREST
          This list offers readers with web addresses for web sites that contain information about
          the programs, agencies, and organizations discussed in this document. Many are
          organizational home pages that have links to more detailed information regarding
          nonpoint source pollution.

Bay and Estuary Programs
          Coastal Bend Bay and Estuaries Program
          http://www.cbbep.org/

          Galveston Bay and Estuaries Program
          http://gbep.state.tx.us

Cities
          City of Abilene
          http://www.abilenetx.com

          City of Austin
          http://www.ci.austin.tx.us/

          City of Dallas
          http://www.dallascityhall.com/

          City of Denton
          http://www.cityofdenton.com

          City of El Paso
          http://www.ci.el-paso.tx.us/default.asp

          City of Fort Worth
          http://www.fortworthgov.org

          City of Houston
          http://www.houstontx.gov/

          City of Laredo
          http://www.ci.laredo.tx.us/

          City of San Angelo
          http://www.sanangelotexas.org

          City of San Antonio
          http://www.sanantonio.gov

    296                                                TCEQ/TSSWCB joint publication SFR-68/04
Council of Governments
          Council of State Governments
          http://www.csg.org/csg/default

          Houston Galveston Area Council
          http://www.h-gac.com/HGAC/home/

          North Central Texas Council of Governments
          http://www.nctcog.org

Federal Agencies
          National Natural Resources Conservation Foundation
          http://www.nrcs.usda.gov/

          National Oceanic and Atmospheric Administration
          http://www.noaa.gov/

          U.S. Army Corp of Engineers
          http://www.usace.army.mil/

          U.S. Coast Guard
          http://www.uscg.mil/USCG.shtm

          U.S. Department of Agriculture
          http://www.usda.gov/

          U.S. Environmental Protection Agency
          http://www.epa.gov/

          U. S. Geological Survey
          http://www.usgs.gov/

Groundwater Protection
          Barton Springs/Edwards Aquifer Conservation District
          http://www.bseacd.org/

          Edwards Aquifer Authority
          http://www.edwardsaquifer.org/

          Groundwater Protection Council
          http://www.gwpc.org/



   TCEQ/TSSWCB joint publication SFR-68/04                       297
          Texas Alliance of Groundwater Districts or Texas Groundwater Alliance
          http://www.texasgroundwater.org/

          Texas Groundwater Protection Committee
          http://www.tgpc.state.tx.us/


Industrial Councils
          Texas Chemical Council
          http://www.txchemcouncil.org/

          Texas Nursery and Landscape Association
          http://txnla.org/

Interstate and International Agencies
          American Water Works Association
          http://www.awwa.org/

          Association of State Drinking Water Administrators
          http://www.asdwa.org

          Association for State and Interstate Water Pollution Control Administrators
          http://www.asiwpca.org/

          Border Environment Cooperation Commission
          http://www.cocef.org/ingles.php

          International Boundary and Water Commission
          http://www.ibwc.state.gov/

          North American Development Bank
          http://www.nadbank.org/

          Pollution Control Administrators
          http://www.asiwpca.org/

          Rio Grande/Rio Bravo Basin Coalition
          http://www.rioweb.com


River Authorities
          Brazos River Authority
          http://www.brazos.org

    298                                               TCEQ/TSSWCB joint publication SFR-68/04
          Lower Colorado River Authority
          http://www.lcra.org/index.html

          San Antonio River Authority
          http://www.sara-tx.org

          Upper Colorado River Authority
          http://www.ucratx.org

State Agencies
          Agriculture Resource Protection Authority
          http://www.agr.state.tx.us/

          Bureau of Economic Geology (University of Texas)
          http://www.beg.utexas.edu

          Coastal Coordination Council
          http://www.glo.state.tx.us/coastal/ccc.html

          Railroad Commission of Texas
          http://www.rrc.state.tx.us

          Structural Pest Control Board
          http://www.spcb.state.tx.us/

          Texas Agricultural Experiment Station
          http://agresearch.tamu.edu/

          Texas A&M On-Site Treatment Training Center
          http://primera.tamu.edu/IRRGSYS/waste.htm

          Texas Commission on Environmental Quality
          http://www.tceq.state.tx.us/index.html

          Texas Cooperative Extension Services
          http://texasextension.tamu.edu/

          Texas Department of Agriculture
          http://www.agr.state.tx.us

          Texas Department of State Health Services
          http://www.DSHS.state.tx.us

          Texas Department of Licensing and Regulation
          http://www.license.state.tx.us/

   TCEQ/TSSWCB joint publication SFR-68/04                   299
      Texas Department of Transportation
      http://www.dot.state.tx.us

      Texas General Land Office
      http://www.glo.state.tx.us

      Texas Farm Services Agency
      http://www.fsa.usda.gov/tx/

      Texas Forest Service
      http://txforestservice.tamu.edu/

      Texas Forestry Association
      http://www.texasforestry.org/

      Texas Institute for Applied Environmental Research (Tarleton State Univ.)
      http://tiaer.tarleton.edu/

      Texas Office of Attorney General
      http://www.oag.state.tx.us/

      Texas On-Site Wastewater Treatment Research Council
      http://www.towtrc.state.tx.us/

      Texas Parks and Wildlife Department
      http://www.tpwd.state.tx.us

      Texas Secretary of State Office
      http://www.sos.state.tx.us/

      Texas State Soil and Water Conservation Board
      http://www.tsswcb.state.tx.us/

      Texas Watch (Texas State University)
      http://www.texaswatch.geo.swt.edu/

      Texas Water Development Board
      http://www.twdb.state.tx.us

      Texas Water Resources Institute (Texas A&M University)
      http://twri.tamu.edu/




300                                                   TCEQ/TSSWCB joint publication SFR-68/04
33.1. Preservation; How Shown, TX R APP Rule 33.1




  Vernon's Texas Rules Annotated
    Texas Rules of Appellate Procedure
      Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
        Rule 33. Preservation of Appellate Complaints (Refs & Annos)

                                                TX Rules App.Proc., Rule 33.1

                                               33.1. Preservation; How Shown

                                                          Currentness


(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:


  (1) the complaint was made to the trial court by a timely request, objection, or motion that:


     (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to
     make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and


     (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or
     Appellate Procedure; and


  (2) the trial court:


     (A) ruled on the request, objection, or motion, either expressly or implicitly; or


     (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.


(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify
the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary
to properly present the complaint in the trial court.


(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed,
separate order is required to preserve a complaint for appeal.


(d) Sufficiency of Evidence Complaints in Nonjury Cases. In a nonjury case, a complaint regarding the legal or factual
insufficiency of the evidence--including a complaint that the damages found by the court are excessive or inadequate, as
distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of
fact--may be made for the first time on appeal in the complaining party's brief.


Credits
Eff. Sept. 1, 1997. Amended by Supreme Court Dec. 23, 2002, eff. Jan. 1, 2003.


                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
33.1. Preservation; How Shown, TX R APP Rule 33.1




Editors' Notes

NOTES AND COMMENTS
   Comment to 2002 change: The last sentence of former Rule 52(d) of the Rules of Appellate Procedure has been
   reinstated in substance.



Notes of Decisions (3438)

Rules App. Proc., Rule 33.1, TX R APP Rule 33.1
Current with amendments received through 6/1/2015

End of Document                                             © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         2
43.2. Types of Judgment, TX R APP Rule 43.2




  Vernon's Texas Rules Annotated
    Texas Rules of Appellate Procedure
      Section Two. Appeals from Trial Court Judgments and Orders (Refs & Annos)
        Rule 43. Judgment of the Court of Appeals (Refs & Annos)

                                                TX Rules App.Proc., Rule 43.2

                                                    43.2. Types of Judgment

                                                             Currentness


The court of appeals may:


(a) affirm the trial court's judgment in whole or in part;


(b) modify the trial court's judgment and affirm it as modified;


(c) reverse the trial court's judgment in whole or in part and render the judgment that the trial court should have rendered;


(d) reverse the trial court's judgment and remand the case for further proceedings;


(e) vacate the trial court's judgment and dismiss the case; or


(f) dismiss the appeal.


Credits
Eff. Sept. 1, 1997.



Notes of Decisions (119)

Rules App. Proc., Rule 43.2, TX R APP Rule 43.2
Current with amendments received through 6/1/2015

End of Document                                                      © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   1
Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801




  Vernon's Texas Rules Annotated
    Texas Rules of Evidence (Refs & Annos)
      Article VIII. Hearsay (Refs & Annos)

                                               TX Rules of Evidence, Rule 801

                      Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay

                                                          Currentness


(a) Statement. “Statement” means a person's oral or written verbal expression, or nonverbal conduct that a person intended
as a substitute for verbal expression.


(b) Declarant. “Declarant” means the person who made the statement.


(c) Matter Asserted. “Matter asserted” means:


  (1) any matter a declarant explicitly asserts; and


  (2) any matter implied by a statement, if the probative value of the statement as offered flows from the declarant's belief
  about the matter.


(d) Hearsay. “Hearsay” means a statement that:


  (1) the declarant does not make while testifying at the current trial or hearing; and


  (2) a party offers in evidence to prove the truth of the matter asserted in the statement.


(e) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:


  (1) A Declarant-Witness's Prior Statement. The declarant testifies and is subject to cross-examination about a prior
  statement, and the statement:


    (A) is inconsistent with the declarant's testimony and:


       (i) when offered in a civil case, was given under penalty of perjury at a trial, hearing, or other proceeding or in a
       deposition; or




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Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801




       (ii) when offered in a criminal case, was given under penalty of perjury at a trial, hearing, or other proceeding--except
       a grand jury proceeding--or in a deposition;


    (B) is consistent with the declarant's testimony and is offered to rebut an express or implied charge that the declarant
    recently fabricated it or acted from a recent improper influence or motive in so testifying; or


    (C) identifies a person as someone the declarant perceived earlier.


  (2) An Opposing Party's Statement. The statement is offered against an opposing party and:


    (A) was made by the party in an individual or representative capacity;


    (B) is one the party manifested that it adopted or believed to be true;


    (C) was made by a person whom the party authorized to make a statement on the subject;


    (D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or


    (E) was made by the party's coconspirator during and in furtherance of the conspiracy.


  (3) A Deponent's Statement. In a civil case, the statement was made in a deposition taken in the same proceeding. “Same
  proceeding” is defined in Rule of Civil Procedure 203.6(b). The deponent's unavailability as a witness is not a requirement
  for admissibility.


Credits
Adopted eff. March 1, 1998. Amended eff. Jan. 1, 1999. Amended by orders of Supreme Court March 10, 2015 and Court of
Criminal Appeals March 12, 2015, eff. April 1, 2015.


Editors' Notes

NOTES AND COMMENTS

    Comment to 2015 Restyling: Statements falling under the hearsay exclusion provided by Rule 801(e)(2) are no
    longer referred to as “admissions” in the title to the subdivision. The term “admissions” is confusing because not all
    statements covered by the exclusion are admissions in the colloquial sense--a statement can be within the exclusion
    even if it “admitted” nothing and was not against the party's interest when made. The term “admissions” also raises
    confusion in comparison with the Rule 803(24) exception for declarations against interest. No change in application
    of the exclusion is intended.

    The deletion of former Rule 801(e)(1)(D), which cross-references Code of Criminal Procedure art. 38.071, is not
    intended as a substantive change. Including this cross-reference made sense when the Texas Rules of Criminal



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Rule 801. Definitions That Apply to This Article; Exclusions..., TX R EVID Rule 801


    Evidence were first promulgated, but with subsequent changes to the statutory provision, its inclusion is no longer
    appropriate. The version of article 38.071 that was initially cross-referenced in the Rules of Criminal Evidence
    required the declarant-victim to be available to testify at the trial. That requirement has since been deleted from the
    statute, and the statute no longer requires either the availability or testimony of the declarant-victim. Thus, cross-
    referencing the statute in Rule 801(e)(1), which applies only when the declarant testifies at trial about the prior
    statement, no longer makes sense. Moreover, article 38.071 is but one of a number of statutes that mandate the
    admission of certain hearsay statements in particular circumstances. See, e.g., Code of Criminal Procedure art. 38.072;
    Family Code §§ 54.031, 104.002, 104.006. These statutory provisions take precedence over the general rule excluding
    hearsay, see Rules 101(c) and 802, and there is no apparent justification for cross-referencing article 38.071 and not
    all other such provisions.



Notes of Decisions (730)

Rules of Evid., Rule 801, TX R EVID Rule 801
Current with amendments received through 6/1/2015

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              © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                  3
