                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00180-CV

PAPE PARTNERS, LTD,
GLENN R. PAPE AND
KENNETH W. PAPE
                                                             Appellants
v.

DRR FAMILY PROPERTIES LP
AND LOUISE W. CHAMPAGNE,
                                                             Appellees



                            From the 74th District Court
                             McLennan County, Texas
                            Trial Court No. 2017-1724-3


                              DISSENTING OPINION


                                     THE COON HUNT

       The most embarrassing thing for a coon dog is to bark up the wrong tree.

Sometimes a coon will go up one tree, walk across the tree tops to another tree and come

back to the ground and escape the dogs and hunters. Some coon dogs, however, learn

this escape tactic and either follow movement of the coon in the treetop (which is difficult
to do since most coon hunts are at night) or periodically make wide sweeping circles

around the tree to make sure the coon has not walked the tree tops and come back to the

ground from another tree. The really good coon dogs never continue to bark up the

wrong tree.

        In this case, the Papes realized that the issue they were chasing was not in the

TCEQ-administrative tree. Rather, the issue that needed to be decided was up another

tree; the district-court-ownership-determination tree. They were initially barking up the

wrong tree, but they made a big sweeping circle and found the tree to which the coon

had moved. I think the Papes are now barking up the right tree. My colleagues, however,

have concluded that the Papes must stay with the first tree even though it appears the

first tree is useless to them because there is no coon in that tree. Thus, I will endeavor to

briefly explain why they should not be required to continue to bark up the wrong tree.

                                            THE IMPORTANCE

        Any person who owns a right to surface water, and attorneys who regularly

litigate title issues, particularly those that may also involve ownership of water rights,

whether as part of a conveyance of property or as a severed property right, draw near

and listen. If this Court’s holding is correct, any effort to determine the ownership of

surface water rights must be pursued solely through the administrative process before

the TCEQ. Because I do not believe that is the proper holding in this appeal, I respectfully

dissent.


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                                             WATER RIGHTS

        I will not recount the lengthy and colorful history recognizing that the right of

access to and use of water is a valuable right. I will pick up with the story in 1967 when

Texas passed the Texas Water Rights Adjudication Act (TWRAA). See TEX. WATER CODE

ANN. §§ 11.301 et seq. In this Act, the legislature used a phrase “water rights

adjudication.” The phrase became a short-hand reference to the delegation to regulate

the conservation of the natural resource of surface water by determining the amount of

use, place of use, purpose of use, point of diversion, rate of diversion, and in the

appropriate situation, included the acreage to be irrigated.

        This meaning of the phrase was thus well established by the time the legislature

used it roughly 18 years later when it delegated to the TCEQ in the Texas Water Code

“general jurisdiction over water and water rights including the issuance of water rights

permits, water rights adjudication, cancellation of water rights, and enforcement of water

rights.” TEX. WATER CODE ANN. § 5.013(a) (emphasis added). The legislature did not

grant the TCEQ jurisdiction to adjudicate title, in effect ownership, of water rights which

is the traditional role of the courts. And there are serious constitutional arguments

against such a grant if attempted.

        Moreover, it appears such an effort to strip the courts of such a role would be

unworkable within the current TCEQ framework.




Pape Partners, Ltd., et al v. DRR Family Properties LP, et al.                       Page 3
                                EXCLUSIVE JURISDICTION OF TCEQ?

        If the TCEQ “exclusive jurisdiction” argument of appellee is accepted, every

ownership dispute of water rights must be submitted to TCEQ for a determination. This

would mean that every will contest, every contract, every deed, and every other dispute

(including claims of adverse possession) over a water right would have to be decided by

the TCEQ even though other and directly related ownership interest in property would

have to be decided by a court in the judicial branch. Such a system of separating

ownership determinations could lead to directly conflicting results.

        The TCEQ regulatory system is not structured to determine ownership. It is a

system that is designed to track recorded ownership, not to determine ownership. The

system looks at the title documents, it may apply some of its internal rules, and determine

who, according to the chain of title established by those title documents, owns the water

right. That is as far as the TCEQ’s “jurisdiction” goes.

        If there is a dispute about whether a water right was transferred or not, the TCEQ,

which is in the administrative branch of government, is not the place to adjudicate that

issue. Rather, a court in the judicial branch is where ownership of these water rights is

properly determined. Nowhere is the fallacy of the appellee’s argument more apparent

than a determination of ownership based on adverse possession. In such a dispute, there

is normally no title document upon which the TCEQ can establish a chain of title until a

court renders a judgment adjudicating ownership of the property right, thus determining


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title. And how unworkable would the system be if the title by adverse possession of real

property had to be done in a court while adverse possession of a water right appurtenant

to that same real property had to be adjudicated by the TCEQ because it had “exclusive

jurisdiction” as argued by the appellee.

                                              CONCLUSION

        In deference to the decision made by a majority of this Court, and in the interest

of time, a more detailed discussion of the cases and arguments of the parties will yield to

this more general discussion of the issue.1 But that is a serious and difficult issue that

could adversely impact any person that needs to adjudicate ownership of a water right

so that they can present a proper and valid chain of title for that water right to the TCEQ.

        I find no fault with what the Papes have done. When the Papes realized they were

barking up the wrong tree at the TCEQ, they shifted to the correct tree - a court in the

judicial branch. Accordingly, I respectfully dissent to the Court’s affirmance of the trial

court’s dismissal of their suit to litigate ownership of the water rights at issue in this

proceeding. I would reverse the trial court and remand this proceeding to the trial court

for further proceedings to litigate the merits of their dispute over the ownership of those




1
 Both parties have provided extensive briefing and case analysis which is readily available on the Court’s
case management system, aka TAMES. While it would serve no useful purpose here to rehash their
arguments, it appears both have assumed the extreme positions that are beyond the scope of the relatively
narrow issue before the Court and that the answer to that issue is somewhere in the middle of their more
extreme positions.
Pape Partners, Ltd., et al v. DRR Family Properties LP, et al.                                     Page 5
water rights.



                                                  TOM GRAY
                                                  Chief Justice



Dissenting opinion delivered and filed January 29, 2020




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