      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00574-CV



                              Robert L. Wynne, D.D.S., Appellant

                                                 v.

    Rebecca A. Klein, Timothy Timmerman, Kathleen Hartnett White, Steve K. Balas,
     Lori A. Berger, Ida A. Carter, John C. Dickerson III, Thomas Michael Martine,
            W.S. “Woody” McCasland, Michael G. McHenry, Linda C. Raun,
   Vernon E. “Buddy” Schrader, Richard “Dick” Scott, Franklin Scott Spears, Jr., and
 B.R. “Skipper” Wallace, each in their Official Capacity as Members or Former Members
       of the Board of Directors of the Lower Colorado River Authority, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
         NO. D-1-GN-09-004422, HONORABLE TIM SULAK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Robert L. Wynne, D.D.S., sued the members of the board of directors of

the Lower Colorado River Authority1 (collectively, “the Board members”) in their official capacities

seeking injunctive and declaratory relief regarding the LCRA’s maintenance of the waters of

Lake Travis. The Board members filed a plea to the jurisdiction, asserting that sovereign immunity

barred the suit because Wynne’s pleadings did not allege that they had engaged in any ultra vires

acts. The Board members’ plea also asserted that Wynne lacked standing to bring the suit. The trial


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         Rebecca A. Klein, Timothy Timmerman, Kathleen Hartnett White, Steve K. Balas,
Lori A. Berger, Ida A. Carter, John C. Dickerson III, Thomas Michael Martine,
W.S. “Woody” McCasland, Michael G. McHenry, Linda C. Raun, Vernon E. “Buddy” Schrader,
Richard “Dick” Scott, Franklin Scott Spears, Jr., and B.R. “Skipper” Wallace.
court granted the plea to the jurisdiction without specifying the jurisdictional ground on which it

relied and dismissed Wynne’s claims against the Board members. Wynne appeals. We will affirm

the trial court’s judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

               The LCRA is a conservation and reclamation district created by the State of Texas

under the authority of article XVI, section 59(a) of the Texas Constitution. It is a governmental

agency and political subdivision of the State, see Tex. Spec. Dist. Code Ann. § 8503.001(a) (West

2012); Hodge v. Lower Colo. River Auth., 163 S.W.2d 855, 857 (Tex. Civ. App.—Austin 1942, writ

dism’d by agr.), and, as such, enjoys immunity from suit unless the legislature has expressly waived

that immunity, see Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695-96 (Tex. 2003).

Sovereign immunity extends not only to the LCRA itself, but also to its board members acting in

their official capacities. See City of El Paso v. Heinrich, 284 S.W.3d 366, 369-70 (Tex. 2009). An

exception to sovereign immunity applies when a party alleges that the government officer acted

“without legal authority or failed to perform a purely ministerial act.” Id. at 372. Immunity from

suit deprives a court of subject-matter jurisdiction and may be properly asserted in a plea to the

jurisdiction. See Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).

               Our analysis of whether Wynne’s suit is within the trial court’s jurisdiction begins

with his live pleadings. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). The plaintiff has the initial burden of alleging facts that affirmatively demonstrate the trial

court’s jurisdiction to hear the cause—in this case, allegations of ultra vires acts by the Board

members. Id. (citing Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.

                                                  2
1993)). When, as here, the facts relevant to jurisdiction are undisputed, the court should make the

jurisdictional determination as a matter of law based solely on those undisputed facts. University

of Tex. v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin 2009, no pet.) (citing Miranda,

133 S.W.3d at 226). Whether the plaintiff has met his burden is a question of law, which we review

de novo. Id. We construe the pleadings liberally, taking them as true, and look to the pleader’s

intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue

is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Id. at

226-27. If, however, the pleadings affirmatively negate the existence of jurisdiction, then a plea to

the jurisdiction may be granted without allowing the plaintiff an opportunity to replead. Id. at 227.


                                           DISCUSSION

               In his third amended petition, his live pleading in this case, Wynne alleged that the

Board members conducted activities that caused Lake Travis to be substantially drained during

2008 and for most of the years 2009 through 2011. Wynne contends that the Board members’

activities in this regard exceeded their constitutional authority as set forth in article XVI, section

59(a) of the Texas Constitution, which Wynne asserts mandates that the LCRA “conserve and

reclaim the State’s water.” The Board members’ activities that Wynne contends are beyond the

scope of their constitutional authority are (1) owning or operating gas or coal-fired electrical

generating plants, an activity he alleges “demands and consumes water from Lake Travis”; (2) selling

water to the South Texas Nuclear Project; (3) selling water downstream of Lake Travis for

non-irrigation purposes; and (4) permitting too much water from the Colorado River to flow into

                                                  3
Matagorda Bay and its estuaries. We examine whether any of these activities exceeds the authority

vested in the LCRA by the Texas Constitution.2

               Article XVI, section 59(a) of the Texas Constitution provides:


       The conservation and development of all of the natural resources of this State, and
       development of parks and recreational facilities, including the control, storing,
       preservation and distribution of its storm and flood waters, the waters of its rivers and
       streams, for irrigation, power and all other useful purposes, the reclamation and
       irrigation of its arid, semi-arid and other lands needing drainage, the conservation and
       development of its forests, water and hydroelectric power, the navigation of its inland
       and coastal waters, and the preservation and conservation of all such natural
       resources of the State are each and all hereby declared public rights and duties; and
       the Legislature shall pass all such laws as may be appropriate thereto.


Tex. Const. art. XVI, § 59(a). In construing a provision of the Texas Constitution, it is our duty to

ascertain and give effect to the plain intent and language of its framers and of the people who

adopted it. Gragg v. Cayuga Indep. Sch. Dist., 539 S.W.2d 861, 865-66 (Tex. 1976) (citing Deason

v. Orange Cnty. Water Control & Improvement Dist. No. 1, 244 S.W.2d 981, 984 (1952)). Section

59(a) specifies the purposes for which water control and improvement districts may be organized.

One of those expressly stated purposes is “development” of the waters of the State’s rivers and


       2
           The Board members argue that the legislative act creating the LCRA clearly permits the
activities of which Wynne complains. See Tex. Spec. Dist. Code Ann. §§ 8503.001-.031 (West
2012). In response, Wynne contends the constitutional provision authorizing the creation of
conservation and reclamation districts and setting forth their purposes and duties—not the statute
creating the LCRA—establishes the outer boundaries of the activities the Board members may
engage in. See Deason v. Orange Cnty. Water Control & Improvement Dist. No. 1, 244 S.W.2d 981,
984 (Tex. 1952) (constitutional amendments specify circumstances and purposes for which water
control and improvement districts may be organized, and legislature is without power to add to or
withdraw from those specified circumstances and purposes). Because we conclude that the
complained-of activities of the Board members fall within the scope of activities authorized by the
relevant constitutional provision, we do not address the role played by the LCRA’s enabling act.

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streams for “power.” The term “development” is defined as “to bring out the capabilities or

possibilities of; bring to a more advanced or effective state,” Random House Dictionary of the

English Language 543 (2d ed. 1987), and more specifically with respect to natural resources “to

make actually available or useable (something previously only potentially available or useable) <~ing

the natural resources of the region>,” Webster’s Third New Int’l Dictionary 618 (2002). Thus, a

plain reading of the provision contemplates that a conservation and reclamation district such as the

LCRA may use the State’s waters to aid, promote, or facilitate the generation of power. While

Wynne contends that the term “power” should be read to be limited to hydroelectric power, the

provision itself contains no such limitation. Moreover, production of power by means other than

hydroelectric generation falls squarely within the expressly permitted “other useful purposes” to

which the State’s water may be put—i.e., providing power for use by the State’s citizens.

               Similarly, selling water to the South Texas Nuclear Project falls within the scope of

developing water for use in the generation of power. And it, too, constitutes the use of the State’s

water for a “useful purpose.” While Wynne alleges in his petition that the Texas Constitution does

not permit the LCRA to “sell” anything, section 59(a) expressly permits the water to be “developed”

for “all other useful purposes.” So long as the use to which the water is put by the purchaser is a

“useful purpose,” we believe the sale of water itself falls within the scope of the LCRA’s permitted

activities. Indeed, we note that the very justiciable interest Wynne relies on to support his claim to

have standing to bring this suit is predicated in part on the LCRA’s ability to sell water to the




                                                  5
Windermere Oaks Water Supply Corporation, which in turn provides Wynne and his neighbors with

their household water—another useful purpose.3

               The same analysis applies to Wynne’s complaint about the LCRA’s sale of water

downstream of Lake Travis for non-irrigation purposes.4 Wynne asserts that voluntary sales of water

to downstream users for other than irrigation purposes are not permitted because they amount to the

sale of water “to generate revenue for the LCRA,” and that the Board members’ “pursuit of revenues

for the LCRA does not justify selling water for other than the constitutionally permitted irrigation.”

However, as is true of the LCRA’s sale of water to the water-supply corporation that services

Wynne’s own neighborhood, the mere fact that a sale also generates revenue for the LCRA does not

render it beyond the scope of activities permitted by the Texas Constitution so long as the water is

put to a useful purpose, whether it be for irrigation or something else.

               The final activity that Wynne alleges is ultra vires is that “[o]ver the life of the LCRA,

the Colorado River has outflowed into Matagorda Bay an average volume of water that is well over

the levels that are appropriate to sustain the ecology of the Bay and its related wildlife.” Wynne

contends that the “outflow has consistently exceeded the targeted needs of Matagorda Bay” and that

the alleged waste “could be reduced, if not eliminated, if the Defendants used some of the LCRA’s

massive revenues to construct reservoirs near the coast to build and conserve, rather than waste,



       3
          In his briefing to this Court, Wynne asserts that the LCRA has not “denied that their own
rationing to the water supply corporation is what triggers the limits the water supply corporation in
turn imposes” on him. He also states that “the water supply corporation at Windermere Oaks, where
Appellant lives, gets the water it supplies to Appellant’s home from the LCRA.”
       4
          Wynne’s live pleading alleges that “[i]t is obvious that non-irrigation, historically
unintended, uses are being made of much of the water the LCRA is supposedly using for irrigation.”

                                                   6
reserves.” In his brief, Wynne argues that the amount of water flowing into Matagorda Bay

constitutes “waste” because the LCRA’s own Water Management Plan states that critical inflow

needs of the bay and its estuaries is 171,120 acre-feet of water per year and it commits to meet that

level in every year, regardless of the January 1 combined storage levels of Lake Travis and Lake

Buchanan. In years in which the combined storage levels are at 1.7 million acre-feet of water on

January 1, the Water Management Plan provides that the LCRA will commit to flowing “target

inflow needs” of 1.03 million acre-feet of water per year into the bay and estuaries. According to

Wynne, flowing more than the “critical inflow”—or “target flow”—constitutes a waste of that water

and is, therefore, an ultra vires act. We disagree.

               To fall within the ultra vires exception to sovereign immunity, a suit must not

complain of a government officer’s exercise of discretion but rather must allege, and ultimately

prove, that the officer acted without legal authority or failed to perform a purely ministerial act.

Heinrich, 284 S.W.3d at 372. The targeted volumes in its Water Management Plan are the volumes

the LCRA has committed to send downstream, presumably based on an evaluation of what is

required to sustain the wildlife and ecology of Matagorda Bay and its estuaries. We disagree that

providing more water than is critically necessary to sustain the bay and estuaries, or even exceeding

the maximum outflow levels that the LCRA has committed to in years of greater water supply,

necessarily constitutes waste. The Board members’ determination of whether to exceed those

minimum targets, and if so by how much, is plainly a matter of discretion. While the Board

members may not have the discretion to cause the LCRA to refuse to supply at least the critical

amounts of water needed to sustain the bay and estuaries, there is no constitutional or statutory



                                                  7
prohibition against their allowing more than the bare minimum to flow into them. Instead, it is

within the Board members’ discretion to decide how much water to permit to flow downstream.

                We conclude that none of the Board members’ activities Wynne complains of in his

petition constitutes an ultra vires act. The activities related to the operation of power plants, the sale

of water to the South Texas Nuclear Plant, and the sale of water to downstream users for

non-irrigation purposes are permitted by article XVI, section 59(a) of the Texas Constitution and

consequently are not ultra vires. The decision to allow greater volumes of water to flow into

Matagorda Bay and its estuaries than the amount the LCRA has committed to in its Water

Management Plan involves an exercise of the Board members’ discretion and does not, therefore,

fall within the ultra vires exception. Consequently, we hold that sovereign immunity bars Wynne’s

claims against the Board members. Having so concluded, we need not address the separate ground

the Board members urged in their plea to the jurisdiction—i.e., that Wynne lacks standing to bring

his claims. See Tex. R. App. P. 47.1. Because the trial court properly concluded it did not have

subject-matter jurisdiction over Wynne’s claims against the Board members, it did not err in granting

the Board members’ plea to the jurisdiction.


                                           CONCLUSION

                We affirm the judgment of the trial court.




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                                           _____________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Affirmed

Filed: October 31, 2012




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