Claudia Jenks
From:                       Jeff Kyle
Sent:                       June 02, 2017 8:50 AM
To:                         Blake Hawthorne
Cc:                         Claudia Jenks
Subject:                    15-744-CV Corrected Opinion and Judgment (17-0365)
Attachments:                15-744-CV COVER LETTER_FILECOPY.pdf; 2017-06-01_CV15-744.mem.pdf; 2017-06-01
                            _J744cv15.pdf

Importance:                 High


Blake, 
 
These are copies of the corrected opinion and Judgment issued by the third Court.  A petition for review is currently 
pending, 17‐0365.  Please let me know if you have any questions.   
 
Best regards, 
 
Jeff 
 
Jeffrey D. Kyle 
Clerk, Third Court of Appeals 
P.O. Box 12547 
Austin, TX 78711 
Phone:                     
Fax: 512-463-1685 
 




                                                            1
                                                                                     FILE COPY




                                    COURT OF APPEALS
                                        FOR THE
                                THIRD DISTRICT OF TEXAS
                             P.O. BOX 12547, AUSTIN, TEXAS 78711-2547
                                          (512) 463-1733



Date:           June 2, 2017

Case Number: 03-15-00744-CV
Trial Court No.: D-1-GN-15-003093

Style:          The Chambers-Liberty Counties Navigation District;
                Terry Haltom, in his Individual Capacity as District Commissioner;
                Allen Herrington, in his Individual Capacity as District Commissioner;
                Ken Coleman, in his Individual Capacity as District Commissioner;
                Ken Mitchell, in his Individual Capacity as District Commissioner; and
                Dave Wilcox, in his Individual Capacity as District Commissioner v.
                The State of Texas


The following corrections were made to the opinion and the judgment dated July 8, 2016, in the
above referenced cause number:


       On page one, in the style, lines six and seven of the opinion and the judgment,
“Commissioner; and Sustainable Texas Oyster Resource Management, L.L.C., Appellants”
was changed to “Commissioner, Appellants”.


       On page one, paragraph one, line three of the opinion, “Commissioners); and
Sustainable Texas Oyster Resource Management, L.L.C. (STORM) appeal the” was
changed to “Commissioners) appeal the”.


       On page one, paragraph one, line six of the opinion, “STORM” was changed to
“Sustainable Texas Oyster Resource Management, L.L.C. (STORM)”.


The enclosed corrected opinion and judgment pages were sent this date to the following persons:



 The Honorable Craig T. Enoch                      The Honorable Velva L. Price
 Enoch Kever PLLC                                  Civil District Clerk
 600 Congress, Suite 2800                          Travis County Courthouse
 Austin, TX 78701                                  P. O. Box 1748
 * DELIVERED VIA E-MAIL *                          Austin, TX 78767
                                                   * DELIVERED VIA E-MAIL *
                                                                                  FILE COPY




The Honorable Billy Ray Stubblefield        The Honorable Rhonda Hurley
Administrative Judge                        District Judge, 98th District Court
Williamson County Courthouse                P. O. 1748
405 Martin Luther King, Box 2               Austin, TX 78767
Georgetown, TX 78626                        * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
                                            Mr. Craig J. Pritzlaff
Mr. Lambeth Townsend                        Environmental Protection Division
Lloyd, Gosselink, Rochelle & Townsend, PC   P. O. Box 12548 (MC-066)
816 Congress Avenue, Suite 1900             Austin, TX 78711-2548
Austin, TX 78701                            * DELIVERED VIA E-MAIL *
* DELIVERED VIA E-MAIL *
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00744-CV



                  The Chambers-Liberty Counties Navigation District;
           Terry Haltom, in his Individual Capacity as District Commissioner;
         Allen Herrington, in his Individual Capacity as District Commissioner;
           Ken Coleman, in his Individual Capacity as District Commissioner;
         Ken Mitchell, in his Individual Capacity as District Commissioner; and
       Dave Wilcox, in his Individual Capacity as District Commissioner, Appellants

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
       NO. D-1-GN-15-003093, HONORABLE RHONDA HURLEY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Chambers-Liberty Counties Navigation District (the District); and District

Commissioners Terry Haltom, Allen Herrington, Ken Coleman, Ken Mitchell, and Dave Wilcox (the

Commissioners) appeal the trial court’s order denying their plea to the jurisdiction and Rule 91a

motion to dismiss. The State of Texas, acting on behalf of the Texas Parks and Wildlife Department

(the Department), sued appellants alleging that the District and its Commissioners had unlawfully

authorized Sustainable Texas Oyster Resource Management, L.L.C. (STORM) to cultivate and

harvest oysters in state waters. For the reasons that follow, we affirm the trial court’s order in part

and reverse and dismiss in part.
                                           BACKGROUND

                The District is a political subdivision of the State created in 1944 pursuant to Article

XVI, Section 59 of the Texas Constitution (subsequently converted to a self-liquidating district) and

organized pursuant to Chapters 60, 62, and 63, in part, of the Texas Water Code.1 See Tex. Const.

art. XVI, § 59 (declaring development of navigation in inland and coastal waters of State to be public

purpose and authorizing creation of conservation and reclamation districts); see generally Tex. Water

Code §§ 60.001 .564 (general provisions concerning navigation districts), 62.001 .318 (governing

navigation districts formed under article XVI, section 59); 63.001 .379 (governing self-liquidating

navigation districts). In 1957 and 1967, the State conveyed to the District by patent more than

23,000 acres of submerged land in Galveston and Trinity Bays (the Submerged Lands). In

April 2014, the Commissioners authorized the District to enter into a lease with STORM (the Lease)

covering a portion of the Submerged Lands and granting STORM rights “to use, create, manage,

possess, cultivate or control oyster beds, to seed, plant, transplant, sow, cultivate, depurate or harvest

oysters lawfully and commercially” and “to promote commercial fishing.” The Lease granted

STORM the right “to protect the Land, each oyster bed . . . and the oysters . . . against trespass

and trespassers,” and the lease required STORM, and STORM agreed, to comply with all

applicable laws.




        1
          Self-liquidating districts are those organized under article XVI, section 59 and chapter 62
of the Water Code that “may be made self-supporting and return the construction cost of the district
within a reasonable period by tolls, rents, fees, assessments, or other charges other than taxation.”
Tex. Water Code § 63.021(a).

                                                    2
               The District supported STORM in its effort to obtain a permit from the Army Corps

of Engineers to construct oyster beds, and STORM sent “No Trespass Notices” to holders of leases,

known as “certificates of location,” issued by the Department. In August 2015, on behalf of the

Department, the State sued the District, its Commissioners in their official capacities, and STORM,

alleging that, in leasing the Submerged Lands to STORM, the District and its Commissioners had

exceeded their legal authority, and that the District had unlawfully asserted sole and exclusive

control and possession over all oysters within the waters and upon the Submerged Lands described

in the Lease. The State sought declarations under the Uniform Declaratory Judgments Act that

(1) the District and/or its Commissioners were without legal authority and had acted ultra vires in

entering the Lease, and (2) the Lease is void. See Tex. Civ. Prac. & Rem. Code § 38.001 .011. The

State also sought “restitution” for the value of each oyster or other fish unlawfully killed, caught,

taken, possessed, or injured. See Tex. Parks & Wildlife Code §§ 12.301 (providing that person who

kills, catches, takes, possesses, or injures any fish is liable to state for value of each fish), .303

(providing that attorney general may bring suit to enforce section 12.301). The District and the

Commissioners filed a plea to the jurisdiction and a motion to dismiss under Rule 91a. The plea and

the motion asserted the same jurisdictional arguments. After a non-evidentiary hearing, the district

court denied both the plea to the jurisdiction and the Rule 91a motion.


                                   STANDARD OF REVIEW

               As a political subdivision of the state, the District is immune from suit unless

the legislature has expressly waived immunity. See Prairie View A & M Univ. v. Chatha,

381 S.W.3d 500, 512 (Tex. 2012); College of Mainland v. Glover, 436 S.W.3d 384, 391 (Tex.

                                                  3
App.   Houston [14th Dist.] 2014, pet. denied). Because sovereign immunity deprives a trial court

of subject matter jurisdiction, it is properly asserted in a plea to the jurisdiction. Texas Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 26 (Tex. 2004). A plea questioning the trial

court’s subject matter jurisdiction raises a question of law that we review de novo. Westbrook

v. Penley, 231 S.W.3d 389, 394 (Tex. 2007). When, as here, a plea to the jurisdiction challenges the

pleadings, we look to the pleader’s intent, construe the pleadings liberally in favor of jurisdiction,

and accept the allegations in the pleadings as true to determine if the pleader has alleged sufficient

facts to affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Heckman

v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012); City of El Paso v. Heinrich, 284 S.W.3d 366,

378 (Tex. 2009); Miranda, 133 S.W.3d at 226. When the pleadings do not allege sufficient facts to

affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate an

incurable jurisdictional defect, the issue is one of pleading sufficiency, and the plaintiff should be

given an opportunity to amend. Miranda, 133 S.W.3d at 226 27. If the pleadings affirmatively

negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing

the plaintiff an opportunity to amend. Id. at 227.

               Rule 91a provides that a party may move to dismiss a cause of action on the ground

that it has no basis in law or fact. Tex. R. Civ. P. 91a.1. “A cause of action has no basis in law if

the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle

the claimant to the relief sought.” Id. The court may not consider evidence when ruling on a

Rule 91a motion; instead, the ruling must be based only on the pleading of the cause of action and

any supporting exhibits. Id. R. 91a.6. We review a trial court’s ruling on a motion to dismiss



                                                  4
de novo. Wooley v. Schaffer, 447 S.W.3d 71, 76 (Tex. App.            Houston [14th Dist.] 2014, pet.

denied); see GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex. App.            Beaumont 2014, pet.

denied). We base our review on the allegations of the live petition and any attachments, and we

accept as true the factual allegations. Wooley, 447 S.W.3d at 76.2

                The parties’ issues also require us to construe applicable statutes and rules. Statutory

construction is a question of law that we review de novo. See Railroad Comm’n v. Texas Citizens

for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). Our primary concern is the

express statutory language. See Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863,

867 (Tex. 2009). We apply the plain meaning of the text unless a different meaning is supplied by

legislative definition or is apparent from the context or the plain meaning leads to absurd results.

Marks v. St. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010). “We generally avoid

construing individual provisions of a statute in isolation from the statute as a whole,” Texas Citizens,

336 S.W.3d at 628, and we must consider a provision’s role in the broader statutory scheme, see

20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008). We construe administrative rules in the




       2
            Because the District’s Rule 91a motion rests on jurisdictional grounds, we may consider
it in this interlocutory appeal. See Texas Dep’t of Crim. Justice v. Simons, 140 S.W.3d 338, 349
(Tex. 2004), superseded by statute on other grounds, Tex. Gov’t Code § 311.034 (holding that
interlocutory appeal may be taken from refusal to dismiss for want of jurisdiction whether
jurisdictional argument is made by plea to jurisdiction or some other procedural vehicle); City of
Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 & n.1 (Tex. App. Austin 2014, no pet.) (holding
that right of interlocutory appeal in Civil Practice and Remedies Code section 51.014(a)(8) applied
to Rule 91a motion to dismiss that challenged jurisdiction). Further, because the District asserted
the same arguments in both its plea to the jurisdiction and its Rule 91a motion to dismiss, and
because both were based only on the State’s pleadings, we address them together, as do the parties.

                                                   5
same manner as statutes. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438

(Tex. 2011).


                                           DISCUSSION

Waiver of District’s Immunity

               In their first issue, the District and the Commissioners argue that, as a political

subdivision, the District is immune from suit unless the legislature has expressly waived immunity

and that the applicable statutes contain no such waiver.3 A legislative waiver of immunity must be

expressed in clear and unambiguous language. Tex. Gov’t Code § 311.034; Texas Nat. Res.

Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex. 2002). “For a suit to proceed against

a governmental unit under a statute [that waives sovereign immunity], the court must first look to

the terms of the [a]ct to determine the scope of its waiver and then ‘consider the particular facts of

the case . . . to determine whether it comes within that scope.’” Texas Dep’t of Criminal Justice

v. Cooke, 149 S.W.3d 700, 704 (Tex. App.      Austin 2004, no pet.) (quoting Texas Dep’t of Criminal

Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)).


       3
          Relying on this Court’s opinion in Texas Workers’ Compensation Commission v. City of
Eagle Pass, 14 S.W.3d 801 (Tex. App. Austin 2000, pet. denied), the State initially contends that
the Department is exercising its regulatory authority, from which the district is not immune, and that
the District therefore lacks immunity from the State’s suit. See id. at 803 04 (concluding that
because political subdivisions derive immunity from state, immunity acts as shield against suits by
private parties, but not as shield against state). However, in City of Eagle Pass, there was an express
statutory waiver of immunity. See id. at 806; see also Tex. Lab. Code § 415.021. In fact, the Texas
Supreme Court expressly observed the same in City of Galveston v. State, 217 S.W.3d 466, 471 72
(Tex. 2007). Moreover, in City of Galveston, the Supreme Court rejected the argument that cities
cannot invoke immunity against the State because they derive their immunity from it and held that,
in the absence of legislative consent, the State could not sue the city. Id. at 473 74. We therefore
turn to the parties’ arguments concerning statutory waiver of the District’s immunity.

                                                  6
                The State alleges that the District has unlawfully possessed oysters and seeks recovery

under sections 12.301 and 12.303 of the Texas Parks and Wildlife Code. Section 12.301 provides

that “[a] person who kills, catches, takes, possess, or injures any fish . . . is liable to the state for the

value of each fish . . . unlawfully killed, caught, taken, possessed, or injured.” Tex. Parks & Wildlife

Code § 12.301. Section 12.303 provides that “[t]he attorney general . . . may bring a civil suit . . .

in the name of the state to recover the value of each fish . . . unlawfully killed, caught, taken,

possessed, or injured.” Id. § 12.303. We conclude that, read together, sections 12.301 and 12.303

provide an express statutory waiver of immunity.

                Section 12.301 provides that any “person” who unlawfully possesses fish is liable for

the value of the fish unlawfully possessed. Id. § 12.301. Section 12.303 specifies the officials, and

includes the attorney general, as prosecuting authority who may bring suit in the name of the state

to recover the value of each fish unlawfully possessed. See id. § 12.303. The Code Construction

Act defines “person” to include a “governmental subdivision or agency.” Tex. Gov’t Code

§ 311.005(2). Read together, and construed in light of section 311.005(2)’s definition of “person”

to include a governmental subdivision, sections 12.301 and 12.303 thus provide that the attorney

general may bring suit against any person, including a governmental subdivision such as the District,

who unlawfully possesses fish, and therefore provide an express statutory waiver of immunity.4 See




        4
         The use of the term “person,” although defined to include a governmental subdivision, does
not indicate legislative intent to waive immunity unless the context of the statute indicates no other
reasonable construction. See Tex. Gov’t Code 311.034. Because we conclude that sections 12.301
and 12.303 construed together provide an express statutory waiver, we need not decide whether the
context of section 12.301 indicates that the legislature intended the use of the term “person” in that
section alone to waive immunity.

                                                     7
Tex. Parks & Wildlife Code §§ 12.301, .303; Tex. Gov’t Code §§ 311.005(2), .034; Texas Citizens,

336 S.W.3d at 628; IT-Davy, 74 S.W.3d at 854. Because the State’s allegation that the District

unlawfully possessed oysters falls within this statutory waiver, the State has alleged sufficient facts

to establish waiver of immunity from suit. See Heckman, 369 S.W.3d at 150; Heinrich, 284 S.W.3d

at 378.5

               The State also alleges that the District acted outside its authority by asserting

possession and control over oysters within its jurisdiction           an argument the District and

the Commissioners contend is an improper ultra vires claim against the District. We agree. An

ultra vires claim is one alleging that a public official has acted without legal authority or has

failed to perform a purely ministerial act. Houston Belt & Terminal Ry. Co. v. City of Houston,

___ S.W.3d ___, No. 14-0459, 2016 Tex. LEXIS 234, at *2, *11 (Tex. Apr. 1, 2016); Heinrich,

284 S.W.3d at 372. Because ultra vires suits allege that acts of state officials are not authorized by

the state, they cannot be brought against the state, which retains its immunity, but must be brought

against the state actors in their official capacities, “even though the suit is, for all practical

purposes, against the state.” Heinrich, 284 S.W.3d at 373; see City of New Braunfels v. Tovar,

463 S.W.3d 913, 919 (Tex. App.        Austin 2015, no pet.) (“To invoke the ultra vires exception, a

claimant must sue a human agent of the relevant governmental body, in his or her official capacity.”).

Consequently, the trial court erred in denying the plea to the jurisdiction and Rule 91a motion as to

the State’s ultra vires claim against the District. We therefore sustain the District’s and the


       5
           Because we conclude that sections 12.301 and 12.303 waive the District’s immunity for
suits alleging violations of those sections, we do not reach the District’s argument that section 60.004
of the Texas Water Code does not constitute a waiver of immunity. See Tex. R. App. P. 47.4.

                                                   8
Commissioners’ first issue as to the State’s ultra vires claim against the District, and overrule it in

all other respects. See Heinrich, 284 S.W.3d at 373; Tovar, 463 S.W.3d at 919; see also Texas Dep’t

of Transp. v. Sefzik, 355 S.W.3d 618, 620 (Tex. 2011) (per curiam) (dismissing claims alleged

against agency only in pre-Heinrich petition but remanding to allow plaintiff opportunity to amend

to assert ultra vires claim against state officials under Heinrich).


Ultra Vires Claim Against Commissioners for Restitution

                In their second issue, the District and the Commissioners challenge the State’s ultra

vires claim against the Commissioners. “[W]hile governmental immunity provides broad protection

to the state and its officers, it does not bar a suit against a government officer for acting outside his

authority i.e., an ultra vires suit.” Houston Belt & Terminal Ry., 2016 Tex. LEXIS 234, at *11.

To fall within the ultra vires exception, the State must allege, and ultimately prove, that the

Commissioners acted without legal authority or failed to perform a purely ministerial act. See id.

The State does not argue that the District failed to perform a purely ministerial act but seeks

declarations that the Commissioners acted outside their statutory authority by executing the Lease

with STORM and that the Lease is therefore void. The District and the Commissioners contend that

the State asserts no basis for holding the Commissioners liable and that its ultra vires claim is merely

an attempt to avoid the District’s immunity. To determine whether a party has adequately pleaded

an ultra vires claim, we construe the relevant statutory provisions, apply them to the facts alleged,

and analyze whether those facts demonstrate that officials took action outside of their statutory

authority. See id. at *19 20 (“[W]e look to the ordinance’s language to determine whether the

railroads have properly alleged that [the director of public works and engineering] acted ultra

                                                   9
vires.”); Tovar, 463 S.W.3d at 919 (quoting Texas Dep’t of Transp. v. Sunset Transp., Inc.,

357 S.W.3d 691, 701 02 (Tex. App.       Austin 2011, no pet.)). “Although only exercises of absolute

discretion are absolutely protected, whether a suit attacking an exercise of limited discretion will be

barred is dependent upon the grant of authority at issue in any particular case.” Houston Belt

& Terminal Ry., 2016 Tex. LEXIS 234, at *20.

               The District and the Commissioners cite Water Code provisions authorizing the

District to “acquire” and “own land” and to “lease any part of the acquired land to any individual or

corporation” as authority for their entering the Lease with STORM. See Tex. Water Code

§ 62.107(a), (b). They also cite Water Code section 61.116(b), which defines “navigation” to include

commercial and sport fishing, and argue that the District’s Lease with STORM for the purpose of

encouraging commercial fishing is consistent with the purposes of a navigation district. See id.

§ 61.116(b). Alternatively, the District and the Commissioners cite language in the Lease limiting

STORM’s use of the leased lands to oyster cultivation and requiring STORM to comply with all laws

and argue that the Lease is merely a lease of land for a limited and legal purpose. The State cites

statutory provisions granting the Department authority to manage and regulate the harvesting and

conservation of oysters and agency rules implementing that authority. See Tex. Parks & Wildlife

Code §§ 1.011(d) (providing that Department “shall regulate the taking and conservation of . . .

oysters . . . in accordance with the authority vested in it by this code”), 12.001(a) (providing that

Department “shall administer the laws relating to . . . oysters . . . , as set out in this code”),

12.0011(a) (providing that Department “is the state agency with primary responsibility for protecting

the state’s fish and wildlife resources”), 12.302 (charging Department with adopting rules “to



                                                  10
establish guidelines for determining value of injured or destroyed fish”), 76.001 .404 (providing for

Department’s regulation of oyster beds, permits, and licenses, and, in section 76.301, providing that

Department “may by proclamation regulate the taking, possession, purchase, and sale of oysters”);

31 Tex. Admin. Code §§ 58.10 .304 (Tex. Parks & Wildlife Dept., Oysters, Shrimp, and Finfish)

(Department’s rules regulating oysters, shrimp, and finfish).

               We conclude that, construed together, these provisions do not authorize the

Commissioners to grant STORM the right to use the leased lands to cultivate oyster beds, harvest

oysters, or protect the leased lands, oyster beds, and oysters against trespassers. See Texas Citizens,

336 S.W.3d at 628; Parker, 249 S.W.3d at 396. Section 62.107 authorizes a navigation district to

acquire and own land


       adjacent or accessible to the navigable water and ports developed by it which may be
       necessary or required for any and all purposes incident to or necessary for the
       development and operation of the navigable water or ports within the district, or may
       be necessary or required for or in aid of the development of industries on the land.


Tex. Water Code § 62.107(a) (emphases added). Section 62.107(b) merely provides that a district

may then lease any of the land acquired for the purposes enumerated in section 62.107(a), which

notably do not include regulating oysters. See id. § 62.107(b). While section 61.116(b) defines

“‘navigation’ as used herein” to include commercial and sport fishing, it does so in the context of

authorizing the state to lease lands to navigation districts “only for purposes reasonably related to

the promotion of navigation” and does not set out the purposes or authority of a navigation district.

See id. § 61.116(b) (emphasis added). As a political subdivision of the state and a self-liquidating

navigation district created under the provisions of article XVI, section 59 of the Texas Constitution,

                                                  11
the District shares in the state’s inherent immunity but is not a sovereign entity distinct from the state

and possesses only those powers and privileges expressly or impliedly conferred upon it. See

Wasson Interests, Ltd. v. City of Jacksonville , ___ S.W.3d ___, No. 14-0645, 2016 Tex. LEXIS 232,

at *1 (Tex. Apr. 1, 2016); Tex. Const. art. XVI, § 59 (providing that navigation districts have “such

powers of government and . . . authority to exercise such rights, privileges and functions concerning

the subject matter of this amendment as may be conferred by law”). The District is statutorily

authorized to provide for and make improvements for navigation of inland and coastal waters, for

preservation and conservation of inland and coastal waters for navigation, for control and

distribution of storm water and floodwaters of rivers and streams in aid of navigation, and for other

purposes necessary or incidental to the navigation of inland and coastal waters, see Tex. Water Code

§§ 62.101, 63.152, and in doing so may take such actions as regulating wharfage and facilities

connected with waterways and ports; owning, constructing, and regulating land, waterways, and

facilities; charging for the use of facilities; entering into leases and contracts; and issuing bonds, id.

§ 63.153. Thus, while the District may improve waters for purposes of navigation, including

commercial fishing, section 61.116 does not grant it authority or discretion to permit fishing or

harvesting of oysters, much less the right to convey such authority in leasing land it owns. See

Houston Belt & Terminal Ry., 2016 Tex. LEXIS 234, at *27 28 (while director of public works and

engineering had discretion to interpret term, no language in ordinance granted him discretion to

interpret term contrary to definition in ordinance); Marks, 319 S.W.3d at 663; Pochucha,

290 S.W.3d at 867.




                                                   12
               The District and the Commissioners cite no provisions in article XVI, section 59 of

the Texas Constitution or in the Water Code authorizing the District to exercise control over or

permit fishing or harvesting of oysters, and we are aware of none. See Tex. Const. art. XVI, § 59

(declaring development of navigation in inland and coastal waters of State to be public purpose and

authorizing creation of conservation and reclamation districts); Tex. Water Code §§ 60.001 .564

(setting out general provisions concerning navigation districts), 62.001 .318 (governing navigation

districts formed under article XVI, section 59), 63.001 .379 (governing self-liquidating navigation

districts created under article XVI, section 59). Rather, that authority is expressly vested in the

Department. See Tex. Parks & Wildlife Code §§ 1.011(d), 12.001(a), 12.0011(a), 76.001 .404; 31

Tex. Admin. Code 58.10 .304; see also Marks, 319 S.W.3d at 663; Pochucha, 290 S.W.3d at 867.

Moreover, as a political subdivision, the District is deemed an agent of the state for sovereign

immunity purposes only when it exercises its powers for a public purpose.            See Wasson,

2016 Tex. LEXIS 232 at *12. Texas courts have consistently held that public property leased to a

private party for private commercial purposes is not used for a public purpose.            City of

San Antonio ex rel. City Pub. Servs. Bd. of San Antonio v. Bastrop Cent. Appraisal Dist.,

No. 03-06-00081-CV, 2006 Tex. App. LEXIS 9051, at *9 10 (Tex. App.           Austin Oct. 19, 2006,

pet. denied) (mem. op.); cf. Lower Colorado River Auth. v. Burnet Cent. Appraisal Dist.,

No. 03-15-00724-CV, 2016 Tex. App. LEXIS 5982, at * 5 7 (Tex. App.         Austin June 7, 2016, no

pet. h.) (holding that where LCRA’s lease to private entity limited use to purposes authorized by

statute, land was leased for public purpose).




                                                13
               The State alleges that in entering into the Lease with STORM, the Commissioners

exceeded their statutory authority by asserting possession of and control over oysters and purporting

to pass that possession and control to STORM.6 In the Lease, the District granted STORM rights

“to use, create, manage, possess, cultivate or control oyster beds, to seed, plant, transplant, sow,

cultivate, depurate or harvest oysters lawfully and commercially,” “to promote commercial fishing,”

and “to protect the Land, each oyster bed . . . and the oysters . . . against trespass and trespassers.”

That language presupposes that the District claimed possession of and control over oysters such that

it could grant those rights to STORM. In light of the statutory grant of authority over oysters to the

Department, the absence of any such statutory authority vested in the Commissioners, and the lease

for a private commercial purpose, and construing the pleadings liberally in favor of jurisdiction,

accepting the allegations as true, and applying the applicable statutory provisions to the facts before

us, we conclude that the State has asserted that the Commissioners acted beyond their statutory

authority by entering into the Lease with STORM and thus has properly asserted an ultra vires claim

against the Commissioners. See Houston Belt & Terminal Ry., 2016 Tex. LEXIS 234, at * 19 20;

Heinrich, 284 S.W.3d at 372; Tovar, 463 S.W.3d at 919.




       6
          The State also alleges that the District failed to stop STORM from asserting control over
oysters by preventing holders of leases, known as certificates of location, issued by the Department
from “trespassing” on the leased lands. The record reflects that STORM issued “No Trespass
Notices” to third parties informing them that they were not authorized to “engage in oyster activities”
without STORM’s consent. The State argues that the District did nothing to prevent STORM from
asserting such control over oysters and issuing the notices. The District does not dispute that it did
not prevent STORM from issuing no trespass notices but questions whether it has a legal duty to do
so, an issue we need not decide because it is not necessary for our resolution of the plea to
the jurisdiction.

                                                  14
                The District and the Commissioners also argue that the State’s claim under sections

12.301 and 12.303 for restitution for the value of each oyster unlawfully possessed is actually a claim

for past damages, which is impermissible under Heinrich. See 284 S.W.3d at 375 76. However,

while the Texas Supreme Court in Heinrich held that an ultra vires claim against state officials

generally may seek prospective relief only, it also expressly noted that the legislature can authorize

retrospective relief if appropriate. See id. at 377 (citing Tex. Loc. Gov’t Code § 180.006, which

waives immunity for firefighter and police officer claims for back pay and civil penalties, and

observing that “the contours of the appropriate remedy must be determined by the Legislature”).

Here, sections 12.301 and 12.303 expressly provide for suit by the attorney general to recover the

value of oysters unlawfully possessed. See Tex. Parks & Wildlife Code §§ 12.301, .303. Having

already concluded that sections 12.301 and 12.303 provide an express statutory waiver of immunity

for the State’s claims against the District for unlawfully possessing oysters, see IT-Davy, 74 S.W.3d

at 854, we further conclude that the legislature has expressly authorized retrospective relief as against

the District violations of those statutory provisions, see Heinrich, 284 S.W.3d at 377. We overrule

the District’s and the Commissioners’ second issue.


Ripeness

                In their third issue, the District and the Commissioners contend that the State’s claim

is not ripe for adjudication because the State has not alleged that the District “possessed” the oysters

but instead has alleged only that the District “asserted a right of possession.” According to the

District and the Commissioners, the State has sued them on the basis that the District has asserted

a right to possess shellfish in the future, such that the controversy is purely hypothetical, and any

                                                   15
opinion of this Court would be merely advisory. We disagree with the District’s and the

Commissioners’ analysis of the State’s claim, which essentially equates “possessed” with “taken.”

See Tex. Parks & Wildlife Code §§ 1.101(5) (defining “take” to mean “collect, hook, hunt, net,

shoot, or snare, by any means or device,” including “an attempt to take or to pursue in order to

take”); 12.301 (providing that any person who kills, catches, takes, possesses, or injures any fishis

liable for value of each fish) (emphasis added). We presume the legislature chose a statute’s

language with care, including each word chosen for a purpose. In re M.N., 262 S.W.3d 799, 802

(Tex. 2008). Therefore, we do not read “possessed” to mean the same as “taken.” See Pochucha,

290 S.W.3d at 867; In re M.N., 262 S.W.3d at 802.

               The State alleged that the District entered into the Lease with STORM granting

STORM exclusive rights for thirty years to cultivate and harvest oysters and that, by entering the

Lease, the District asserted unlawful possession and control over oysters and purported to convey

that possession and control over oysters to STORM to the exclusion of all others. The Lease granted

STORM rights to harvest or “take” oysters and to prevent others from doing so, and STORM has

taken actions consistent with those rights. On these facts, we cannot conclude that the State’s claim

involves a purely hypothetical controversy or that an opinion by this Court is advisory. We overrule

the District’s and the Commissioners’ third issue.


                                          CONCLUSION

               We reverse the trial court’s order denying the District’s and Commissioners’ plea to

the jurisdiction and Rule 91a motion as to the State’s ultra vires claim against the District and

dismiss that claim. We affirm the trial court’s order in all other respects.

                                                 16
                                              _____________________________________________
                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed in Part; Reversed and Dismissed in Part

Filed: July 8, 2016




                                                17
       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                           JUDGMENT RENDERED JULY 8, 2016



                                      NO. 03-15-00744-CV


                  The Chambers-Liberty Counties Navigation District;
           Terry Haltom, in his Individual Capacity as District Commissioner;
         Allen Herrington, in his Individual Capacity as District Commissioner;
           Ken Coleman, in his Individual Capacity as District Commissioner;
         Ken Mitchell, in his Individual Capacity as District Commissioner; and
       Dave Wilcox, in his Individual Capacity as District Commissioner, Appellants
                                            v.

                                  The State of Texas, Appellee




        APPEAL FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY
             BEFORE JUSTICES PURYEAR, GOODWIN, AND FIELD
          AFFIRMED IN PART; REVERSED AND DISMISSED IN PART --
                     OPINION BY JUSTICE GOODWIN




This is an appeal from the interlocutory order signed by the trial court on November 23, 2015.

Having reviewed the record and the parties’ arguments, the Court holds that there was reversible

error in the trial court’s interlocutory order. Therefore, the Court reverses the trial court’s order

denying the District’s and Commissioners’ plea to the jurisdiction and Rule 91a motion as to the

State’s ultra vires claim against the District and dismiss that claim. The Court affirms the trial

court’s interlocutory order in all other respects. Each party shall bear their own costs relating to

this appeal, both in this Court and in the court below.
