      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00555-CV



                  Texas Commission on Environmental Quality, Appellant

                                                 v.

 Angela Bonser-Lain; Karin Ascott, as next friend on behalf of T. V. H. and A. V. H., minor
  children; and Brigid Shea, as next friend on behalf of E. B. U., a minor child, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
      NO. D-1-GN-11-002194, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING



                                          OPINION


               This appeal arises from a lawsuit filed by a group of individuals (the Appellees)

seeking judicial review of the Texas Commission on Environmental Quality’s order denying

their petition for rulemaking aimed at regulating greenhouse-gas emissions in Texas. In its final

judgment, the district court denied a plea to the jurisdiction filed by the Commission and affirmed

the Commission’s decision based on one of the legal grounds advanced by the Commission in

its administrative order. On appeal, the Commission argues that the district court erred in denying

its plea to the jurisdiction. Alternatively, the Commission asserts that the declaratory statements

contained in the final judgment, concerning the Commission’s alternative grounds for denying the

Appellees’ petition, should be vacated. Because we conclude the district court lacked subject-matter
jurisdiction over the Appellees’ suit, we vacate the district court’s judgment and render judgment

dismissing the cause for want of subject-matter jurisdiction.


                                         BACKGROUND

               The Appellees filed a petition with the Commission requesting that it adopt rules

aimed at limiting greenhouse-gas emissions from fossil fuels in Texas. At a public meeting, the

Commission considered and denied the petition. In a subsequent written order, the Commission

listed several independent reasons for its decision. In relevant part, the Commission concluded that

(1) “Texas is currently in litigation with the U.S. Environmental Protection Agency (EPA) over the

issue of regulation of [greenhouse gases] under the Federal Clean Air Act (FCAA)”; (2) “Texas

courts have clearly and regularly ruled that where common law duties, such as the public trust

doctrine, have been displaced or revised by statutes enacted by legislatures, the statute controls,”

and “the public trust doctrine in Texas has been limited to waters of the state and does not extend

to the regulation of [greenhouse gases] in the atmosphere”; and (3) “the standard [the Appellees]

propose for [carbon dioxide] has not been developed through the proper mechanism under a federal

statute, in particular [the Federal Clean Air Act] section 109.”

               Citing section 5.351 of the Texas Water Code, the Appellees filed a petition in

district court seeking judicial review of the Commission’s decision. See Tex. Water Code § 5.351

(allowing judicial review of Commission acts). In response, the Commission filed a plea to the

jurisdiction arguing that the suit was barred by sovereign immunity and that section 5.351 does not

provide a waiver of sovereign immunity for suits challenging the denial of a petition for rulemaking.


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                The district court held a hearing on both the Commission’s plea to the jurisdiction

and the merits of the Appellees’ suit. The district court denied the Commission’s plea to the

jurisdiction but upheld the Commission’s decision to deny the Appellees’ petition for rulemaking.

In its final judgment, the district court concluded that “in light of other state and federal litigation,

. . . it is a reasonable exercise of [the Commission’s] rulemaking discretion not to proceed with

the requested petition for rulemaking at this time.” However, the district court also made several

declarations expressly rejecting the Commission’s alternative reasons for denying the Appellees’

petition, including the Commission’s reasoning concerning the public trust doctrine and preemption

under section 109 of the Federal Clean Air Act.

                The Commission subsequently filed this appeal raising two issues. First, the

Commission argues that the district court erred in denying its plea to the jurisdiction and requests

that we reverse the district court’s judgment and dismiss the Appellees’ suit for want of jurisdiction.

According to the Commission, there is no right to judicial review of an order denying an

administrative petition for rulemaking and, therefore, the district court’s review of the agency’s

decision is barred by sovereign immunity. Second, the Commission argues in the alternative that

the district court’s declarations concerning the public trust doctrine and preemption constitute

improper advisory opinions and should be vacated by this Court.


                                             ANALYSIS

                Subject-matter jurisdiction is essential to the authority of a court to decide a case.

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). Subject-matter


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jurisdiction is never presumed and cannot be waived. Id. It may be raised for the first time on

appeal by a party or sua sponte by a reviewing court. Id. (reviewing, on own motion, whether

appellant had standing to bring suit); see Rusk State Hosp. v. Black , 392 S.W.3d 88, 95 (Tex. 2012)

(holding that appellate court could consider sovereign immunity issue raised for first time in

interlocutory appeal); Jack Jones Hearing Ctrs., Inc. v. State Comm. of Exam’rs in Fitting &

Dispensing of Hearing Instruments, 363 S.W.3d 911, 914 (Tex. App.—Austin 2012, no pet.).

Whether a court has subject-matter jurisdiction is a question of law that we review de novo. See

Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Bexar Metro. Water

Dist. v. City of Bulverde, 156 S.W.3d 79, 85-86 (Tex. App.—Austin 2004, pet. denied).

               Subject-matter jurisdiction is implicated in this case in two respects: (1) whether

sovereign immunity deprived the district court of subject-matter jurisdiction over the underlying

dispute, see Miranda, 133 S.W.3d at 226 (sovereign immunity deprives trial court of subject-matter

jurisdiction for lawsuits in which State or certain governmental units have been sued); and (2)

whether we have jurisdiction over this appeal—specifically, whether the Commission has standing

to bring this appeal, given that the judgment it appeals actually affirms the Commission’s decision,

see Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010) (standing is prerequisite to

subject-matter jurisdiction and focuses on who may bring lawsuit); Jack Jones Hearing Ctrs.,

363 S.W.3d at 914 (appellant must show that its interest has been prejudiced or adversely affected

by judgment it seeks to appeal). Because we cannot reach the merits of the Commission’s issues on




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appeal in the absence of appellate jurisdiction, we must first determine if the Commission has

standing to appeal.1


Appellate jurisdiction

               “Texas courts have long held that an appealing party may not complain of errors that

do not injuriously affect it or that merely affect the rights of others.” Torrington Co. v. Stutzman,

46 S.W.3d 829, 843 (Tex. 2000). A party has standing to appeal when “its interest has been prejudiced

or adversely affected by the trial court’s judgment.” Jack Jones Hearing Ctrs., 363 S.W.3d at 914

(citing In re Estate of Denman, 270 S.W.3d 639, 642 (Tex. App.—San Antonio 2008, pet. denied),

and Gorman v. Gorman, 966 S.W.2d 858, 864 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)).



       1
           While subject-matter jurisdiction can be raised at any time, it can be raised only before a
court of competent jurisdiction. See City of Houston v. Estate of Jones , 388 S.W.3d 663, 667 (Tex.
2012) (per curiam) (refusing to consider untimely filed interlocutory appeal of denial of plea to
jurisdiction); Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759, 766 n.7 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (refusing to consider challenge to trial court’s subject-matter jurisdiction
raised on appeal where appellant failed to timely file notice of appeal); see also Siddiqui v. Unlimited
Asset Recovery, Inc., No. 01-09-00026-CV, 2009 WL 3930748, at *2 (Tex. App.—Houston [1st
Dist.] Nov. 19, 2009, no pet.) (mem. op.) (“Without a timely filed notice of appeal, an appellate court
has no jurisdiction to consider any complaint, even a complaint that the trial court had no subject
matter jurisdiction over the case.”). Consequently, it follows that when a live controversy between
the parties ceases to exist, we must dismiss the appeal without reviewing any of the trial court’s
rulings, including any ruling on a challenge to the trial court’s jurisdiction. See Travelers Ins. Co.
v. Joachim, 315 S.W.3d 860, 865 (Tex. 2010) (noting that subject-matter jurisdiction requires “that
the party bringing suit have standing, that there be a live controversy between the parties, and that
the case be justiciable.”); see also Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010) (explaining that
because case was moot due to nonsuit, court of appeals did not err in dismissing appeal of denial of
plea to jurisdiction and motion for summary judgment); University of Tex. Med. Branch at Galveston
v. Estate of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam) (holding that plaintiff’s nonsuit
of underlying action deprived court of appeals of jurisdiction over governmental entity’s appeal of
trial court’s order denying plea to jurisdiction).

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Thus, as a general rule, a party who obtains a favorable judgment in the lower court may not appeal

that judgment merely for the purpose of striking findings and conclusions with which it does not

agree. Champlin Exploration, Inc. v. Railroad Comm’n, 627 S.W.2d 250, 251 (Tex. App.—Austin

1982, writ ref’d n.r.e.); see In re Poole, 975 S.W.2d 342, 345 (Tex. App.—Amarillo 1998, no pet.)

(“[A] party who has prevailed fully in the lower court is not entitled to appeal from the judgment

solely for the purpose of attacking as erroneous the court’s conclusions in support of its judgment.”).

However, an exception to this general rule has long been recognized and applies where the finding

or conclusion would operate as res judicata or collateral estoppel in a subsequent proceeding.

Champlin Exploration, 627 S.W.2d at 251.

                In this case, the Commission is appealing a judgment affirming its decision to

deny the Appellees’ petition for rulemaking, and thus, the judgment on its face appears favorable

to the Commission. However, the district court reviewed the Commission’s decision only after

concluding that it had jurisdiction to do so. In rejecting the Commission’s plea to the jurisdiction,

the district court necessarily concluded that section 5.351 of the Texas Water Code operated as

a waiver of sovereign immunity. Under the doctrine of collateral estoppel, the Commission

may potentially be precluded from relitigating this jurisdictional issue in subsequent proceedings.2

See Restatement (Second) of Judgments § 27 (1982); see also Nguyen v. Desai, 132 S.W.3d 115,


        2
          Collateral estoppel, or issue preclusion, bars the religitation of identical issues of fact or
law decided in a prior suit. Texas Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).
A party seeking to assert the bar of collateral estoppel must establish that (1) the issue of fact or law
sought to be litigated in the second action was fully and fairly litigated in the first action, (2) those
issues were essential to the judgment in the first action, and (3) the party against whom the doctrine
is asserted was a party or was in privity with a party in the first action. Sysco Food Servs., Inc. v.
Trapnell, 890 S.W.2d 796, 801-02 (Tex. 1994).

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118 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (collateral estoppel bars relitigation of

personal-jurisdiction issues decided in first action). Consequently, the Commission has sufficiently

demonstrated that its “interest has been prejudiced or adversely affected” by the district court’s

judgment with respect to the district court’s denial of its plea to the jurisdiction. See Jack Jones

Hearing Ctrs., 363 S.W.3d at 912. Thus, we may review the district court’s denial of the

Commission’s plea to the jurisdiction notwithstanding the judgment in the Commission’s favor.


The trial court’s jurisdiction

                  When, as here, a party challenges a trial court’s subject-matter jurisdiction by

asserting a plea to the jurisdiction, we review the trial court’s ruling de novo. See Miranda, 133

S.W.3d at 225-26. To determine whether a plaintiff has affirmatively demonstrated the trial court’s

subject-matter jurisdiction to hear a case, we consider the facts alleged in the petition along with any

evidence submitted by the parties, to the extent such evidence is relevant to the jurisdictional issue.

See id. at 227; Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2001). We construe

the pleadings in the plaintiff’s favor, taking all factual assertions as true and looking to the

plaintiff’s intent. Miranda, 133 S.W.3d at 226-27. If the pleadings do not allege facts sufficient to

affirmatively demonstrate jurisdiction, but do not affirmatively negate jurisdiction, the issue is one

of pleading sufficiency, and the plaintiff should be afforded an opportunity to amend. Id. On the

other hand, if the pleadings affirmatively negate jurisdiction, then the plea to the jurisdiction should

be granted. Id.

                  Under the common-law doctrine of sovereign immunity, the State and its agencies

cannot be sued, absent an express waiver. Id. at 224. Texas courts defer to the legislature to waive

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immunity from suit because this allows the legislature to protect its policymaking function.

Texas Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). Any waiver

of immunity must be expressed by clear and unambiguous language. Tex. Gov’t Code § 311.034.

Sovereign immunity deprives a trial court of subject-matter jurisdiction and is properly asserted in

a plea to the jurisdiction. Miranda, 133 S.W.3d at 225-27.

                Because there is no dispute that suits against the Commission are generally barred

by sovereign immunity, the pivotal issue regarding the trial court’s jurisdiction is whether the

legislature has waived that immunity, either by statute or by legislative resolution. The Commission

argues that the district court erred in denying its plea to the jurisdiction because neither the Texas

Administrative Procedure Act (APA) nor section 5.351 of the Texas Water Code, the only basis

asserted by the Appellees, allows for judicial review of a denial of a petition for rulemaking.

                The Appellees filed their petition for rulemaking pursuant to section 2001.021 of the

APA. Tex. Gov’t Code § 2001.021. The APA, in part, sets forth the procedures by which Texas

agencies may promulgate rules, if the agency has been delegated such authority by the legislature.

Id. §§ 2001.021-.041. Section 2001.021 authorizes “an interested person” to petition an agency to

adopt a rule. Id. § 2001.021(a). The agency is required to prescribe by rule the form for such

petitions and the procedural rules for its submission, consideration, and disposition. Id. § 2001.021(b).

Upon the submission of a petition for rulemaking, the agency must either deny the petition or initiate

rulemaking within sixty days. Id. § 2001.021(c). Here, it is undisputed that the Appellees filed a

petition for rulemaking with the Commission, and the Commission timely denied the petition.




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               With this procedural background in mind, we consider whether the APA allows

for judicial review of the Commission’s denial of the Appellees’ petition. Section 2001.171 of the

APA provides an independent right to judicial review of certain agency decisions. Id. § 2001.171;

Texas Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex.

2004). Specifically, section 2001.171 states that “a person who has exhausted all administrative

remedies available within a state agency and who is aggrieved by a final decision in a contested

case is entitled to judicial review under this chapter.” Tex. Gov’t Code § 2001.171. Further, section

2001.038 provides that, under certain circumstances, a suit for declaratory relief may be brought to

determine the validity or applicability of a rule. Id. § 2001.038. However, the APA is silent with

respect to whether a person may appeal or otherwise challenge an agency’s decision to deny a

petition for rulemaking.

               A person may obtain judicial review of an administrative action only if a statute

provides that right, or the action adversely affects a vested property right or otherwise violates a

constitutional right. Mega Child Care, 145 S.W.3d at 173. The legislature must provide a right

to judicial review through “clear and unambiguous language.” See id. at 197 (noting that judicial-

review provisions waive sovereign immunity and concluding that section 2001.171 provides limited

waiver of sovereign immunity); see also IT-Davy, 74 S.W.3d at 853-54 (legislative waiver of immunity

“must be expressed in clear and unambiguous language”) (citing Tex. Gov’t Code § 311.034).

Though the legislature has expressly demonstrated its intent to allow judicial review of certain types

of agency decisions under the APA, it has not done so with respect to agency decisions on petitions

for rulemaking. Based on this deliberate silence, we conclude that the APA does not provide a right



                                                  9
to judicial review of an agency’s refusal to adopt rules. See Houston Mun. Emps. Pension Sys. v.

Ferrell, 248 S.W.3d 151, 158 (Tex. 2007) (“There is no right to judicial review of an administrative

order unless a statute explicitly provides that right or the order violates a constitutional right.”);

see also 1 Ronald L. Beal, Texas Administrative Practice & Procedure § 3.1 (2009) (concluding that

silence “clearly implied the legislature intended to preclude judicial review of the refusal to adopt

the rule”).

               The Appellees argue that, separate and apart from the APA, the legislature has

authorized judicial review of a denial of a petition for rulemaking under section 5.351 of the

Water Code. Section 5.351(a) provides that “[a] person affected by a ruling, order, decision, or

other act of the commission may file a petition to review, set aside, modify, or suspend the act of

the commission.” Tex. Water Code § 5.351.

               As Texas courts have repeatedly held, section 5.351 of the Water Code must be

construed in the context of longstanding jurisdictional limitations on judicial review of agency

orders. For example, this Court has recognized that judicial review under section 5.351 is limited

to the review of “final agency orders.” See City of Austin v. Texas Comm’n on Envtl. Quality,

303 S.W.3d 379, 385 (Tex. App.—Austin 2009, no pet.) (agency letter was not subject to judicial

review under section 5.351); see also Texas Comm’n on Envtl. Quality v. Sierra Club, No. 03-

12-00625-CV, 2014 Tex. App. LEXIS 2648, at *7 (Tex. App.—Austin Mar. 7, 2014, pet. filed)

(mem. op.) (Commission’s denial of “motion to overturn” was not subject to judicial review

under section 5.351). Similarly, the Texas Supreme Court has held that section 5.351’s waiver of

immunity is limited to administrative actions that are regulatory in nature and only upon the



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exhaustion of all administrative remedies. See IT-Davy, 74 S.W.3d at 859 (section 5.351 does not

waive immunity for breach-of-contract claims); In re Texas Water Comm’n, 849 S.W.2d 808, 809-10

(Tex. 1993) (section 5.351 authorizes judicial review only upon exhaustion of administrative

remedies, as codified in APA).

               Further, in Hooks v. Texas Department of Water Resources, the supreme court

interpreted the term “affected person” under section 5.351 and determined that it requires that a

person show a “justiciable interest.” 611 S.W.2d 417, 419 (Tex. 1981). The supreme court reached

this conclusion by considering the term “aggrieved” under the APA’s predecessor statute and noting

that the judicial-review provisions of the Water Code “should be read in conjunction and harmony

with” the judicial-review provisions of the APA. Id.; see also Southwestern Bell Tel. Co. v. Public

Util. Comm’n, 735 S.W.2d 663, 671 (Tex. App.—Austin 1987, no writ) (concluding that similar

provision under Public Utility Regulatory Act was “in all likelihood” intended to be “coextensive

with the [APA]”).

               In this case, the Appellees’ right to petition the Commission to adopt rules concerning

greenhouse-gas emissions is derived from section 2001.021 of the APA. See Tex. Gov’t Code

§ 2001.021. Consequently, as the supreme court did in Hooks, we consider the scope of judicial

review under section 5.351 of the Water Code “in conjunction and harmony with” the judicial-

review provisions of the APA. Given the clear absence of a right to judicial review under the APA,

we conclude that section 5.351 of the Water Code does not provide a right to judicial review of a

petition for rulemaking. See Hooks, 611 S.W.2d at 419. Indeed, no Texas court has ever held

that an agency’s refusal to promulgate rules is reviewable by courts, whether via section 5.351 or



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otherwise. Absent a “clear and unambiguous” expression of such intent by the legislature, we will

not be the first. See Tex. Gov’t Code § 311.034. Accordingly, the Appellees failed to demonstrate

the district court’s jurisdiction over their suit.


                                            CONCLUSION

                Because the district court erred in denying the Commission’s plea to the jurisdiction,

we vacate the district court’s judgment and render judgment dismissing the cause for want of

subject-matter jurisdiction.



                                                 __________________________________________

                                                 Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Vacated and Rendered

Filed: July 23, 2014




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