                                      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


                                         OPINION

          In one issue, Appellants Pape Partners, Ltd., Glenn R. Pape, and Kenneth W. Pape

(collectively “the Papes”) challenge the trial court’s order granting Appellee DRR Family

Properties, LP’s1 (“DRR”) motion to dismiss for lack of subject matter jurisdiction. We

will affirm.


1
    Appellee Louise W. Champagne was dismissed by agreement.
                                           I. Background

        Appellants’ pleadings maintain that the Papes purchased a tract of land from Lola

Robinson and Swirl Investments, Inc.2 in 2014. The purchase included irrigation water

rights recognized by the State of Texas in Certificates of Adjudication (“COA”) Nos. 12-

4341 and 12-4344, as amended and consolidated in COA No. 12-4344A. The COA’s were

initially issued to Lola Robinson and her late husband in 1986 as part of a judgment in a

lawsuit brought under the Texas Water Rights Adjudication Act. The amended COA

authorized use of the permitted water for irrigating an additional 250 acres that was

subsequently purchased by DRR.

        In 2015, the Papes attempted to record their purchase of the water rights with the

Texas Commission on Environmental Quality (“TCEQ”). The TCEQ notified DRR and

other potentially interested landowners that they might own an interest in the water

rights. DRR filed a change of ownership form, and the TCEQ eventually concluded that

DRR owned a portion of the water rights. The TCEQ changed its records to reflect DRR’s

ownership.

        The Papes moved to reverse the TCEQ’s decision, and the motion was overruled

by operation of law. The Papes did not pursue an administrative appeal, but brought the

present suit seeking a declaration that it owns all of the water rights in the tract purchased

from Robinson and Swirl. The Papes further asserted claims against DRR for trespass to



2
 Lola Robinson, Swirl Investments, Inc., Timothy Kingrey, Donna Kingrey, Theresa A. Spinks, Johnny W.
Spinks, Roman Cineros, and Sabrina Cisneros are also named as defendants in the Papes’ lawsuit. The trial
court severed the Papes’ claims against DRR and Champagne after granting both parties’ motions to
dismiss for want of jurisdiction.

Pape Partners v. DRR                                                                              Page 2
try title – adverse possession and to quiet title. DRR moved to dismiss the Papes’ claims

against it for lack of subject matter jurisdiction, asserting that the Papes had failed to

exhaust their administrative remedies. The trial court granted DRR’s motion.

                                  II. Standard of Review

       A motion to dismiss based on the absence of subject matter jurisdiction is the

functional equivalent to a plea to the jurisdiction challenging the trial court’s authority to

determine the subject matter of a cause of action. Wallingford v. Trinity Universal Ins. Co.,

253 S.W.3d 720, 723 (Tex. App.—Amarillo 2007, pet. denied); Lacy v. Bassett, 132 S.W.3d

119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.). The absence of subject matter

jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural

vehicles. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a plaintiff

has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction

is a question of law reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004).

                                    III. Issue Presented

       In its sole issue, the Papes assert that the TCEQ’s ruling was in effect a

determination of the legal ownership of the water rights and that the trial court erred in

granting DRR’s motion to dismiss because: (1) the question of property ownership is

within the sole jurisdiction of the courts; (2) the legislature did not vest the TCEQ with

exclusive jurisdiction over the Papes’ claims; and (3) the ruling violates the separation of

powers clause in the Texas Constitution.




Pape Partners v. DRR                                                                    Page 3
                                          IV. Discussion

       A. Jurisdiction. Generally, the power to determine controverted rights to property

by means of binding judgment is vested in the courts. Barshop v. Medina Cty. Underground

Water Conservation Dist., 925 S.W.2d 618, 635 (Tex. 1996). Courts of general jurisdiction

in Texas are presumed to have subject matter jurisdiction absent a showing that the Texas

Constitution or some other law confers jurisdiction on another court, tribunal, or

administrative body. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,

220 (Tex. 2002); see also TEX. CONST. art. V, § 8; TEX. GOV’T CODE ANN. §§ 24.007-.008.

Administrative bodies may exercise only those powers the law confers upon them in clear

and express language. Subaru, 84 S.W.3d at 220. Courts will not imply the existence of

additional authority for administrative bodies, nor may these bodies create for

themselves any excess powers. Id. If an agency has exclusive jurisdiction, the Legislature

grants the agency the sole authority to make an initial determination in a dispute. Id. at

221. A party must then exhaust all administrative remedies before seeking judicial

review of an agency’s action.       Id.    “Until then the trial court lacks subject matter

jurisdiction and must dismiss the claims within the agency’s exclusive jurisdiction.” Id.;

see also In re Southwestern Bell Tel. Co., 235 S.W.3d 619, 625 (Tex. 2007).

       The Papes argue that the Water Code does not expressly grant exclusive

jurisdiction to the TCEQ. In deciding whether an administrative body has exclusive

jurisdiction, we look to its authorizing legislation for either an express grant of exclusive

jurisdiction or for a “pervasive regulatory scheme” indicating an intent to confer

exclusive jurisdiction. Emp’s Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 908-09 (Tex. 2009).

Pape Partners v. DRR                                                                    Page 4
        The Texas Constitution provides:

        The conservation and development of all of the natural resources of this
        State, . . . including the control, storing, preservation and distribution of . .
        . the water of its rivers and streams, for irrigation, power and all other
        useful purposes, . . . 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. 16, § 59.3 In keeping with this authority, the Legislature enacted the

Water Code, granting the TCEQ the “primary authority to establish surface water quality

standards, which it implements, in part, in its permitting actions.” Tex. Comm’n on Envtl.

Quality v. City of Waco, 413 S.W.3d 409, 411 (Tex. 2013). See TEX. WATER CODE ANN. §

26.023. Although the statute does not expressly grant exclusive jurisdiction over water

rights to the TCEQ, the regulatory scheme behind surface water permits is pervasive and

indicative of the Legislature’s intent that jurisdiction over the adjudication of surface

water permits is ceded to the TCEQ. See TEX. WATER CODE ANN. § 26.023; see also id. §

5.013(a)(1) (“The commission has 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. . . .”); § 11.021, et seq. (rights in state water);

§ 11.121, et seq. (permitting process); and § 11.301, et seq. (Water Rights Adjudication Act).

The same enabling legislation has been determined to grant the TCEQ exclusive

jurisdiction over other matters involving water rights. See Sierra Club & Pub. Citizen v.

Tex. Comm’n on Envtl. Quality, No. 03-14-00130-CV, 2016 WL 1304928, at * 3 (Tex. App.—




3
  For a history of water rights legislation in Texas, see City of Marshall v. City of Uncertain, 206 S.W.3d 97
(Tex. 2006).

Pape Partners v. DRR                                                                                   Page 5
Austin Mar. 31, 2016, no pet.) (wastewater discharge permits); City of College Station v.

Wellborn Special Util. Dist., No. 10-04-00306-CV, 2006 WL 2067887, at *1 (Tex. App.—Waco

July 26, 2006, pet. denied) (water and sewer utility rates, operations, and services).

       Once it is determined that an agency has exclusive jurisdiction over an issue, then

the party injured by agency action must follow the review process set up in the statute.

“’An appeal from an administrative agency is not a matter of right, it is set out by statute

and must be strictly complied with in order to vest the district court with jurisdiction.’”

Jones v. State Bd. of Educator Certification, 315 S.W.3d 237, 243 (Tex. App.—Austin 2010,

pet. denied) (quoting Tex. Alcoholic Beverage Comm’n v. Sfair, 786 S.W.2d 26, 27 (Tex.

App.—San Antonio 1990) (per curiam (writ denied))). See also Walter West, P.E., v. Tex.

Comm’n on Envtl. Quality, 260 S.W.3d 256, 260 (Tex. App.—Austin 2008, pet. denied)

(failure to comply with statutory prerequisites under Water Code deprived trial court of

jurisdiction). It is undisputed that the Papes did not follow the administrative review

process.

       The Papes identify four opinions that they assert establish that water rights

ownership disputes are excepted from the TCEQ’s jurisdiction under § 5.013(a)(1).

However, the two oldest cases were decided before the current text of § 5.013(a) went into

effect in 1985. See Clark v. Briscoe Irr. Co., 200 S.W.2d 674 (Tex. Civ. App.—Austin 1947,

no writ); City of Corpus Christi v. Nueces Cty. Water Control and Imp. Dist. No. 3, 540 S.W.2d

357 (Tex. App.—Corpus Christi 1976, writ ref’d n.r.e.). The other cases do not address

the TCEQ’s jurisdiction. Wilson v. New Braunfels Util.’s, 536 S.W.3d 5 (Tex. App.—Austin

2013, pet. dism’d) involves governmental immunity, not whether the appropriate

Pape Partners v. DRR                                                                     Page 6
administrative procedures were followed, while Graham v. Kuzmich, 876 S.W.2d 446 (Tex.

App.—Corpus Christi 1994, no pet.) involves a determination of whether water rights

passed with a deed—the jurisdiction of the TCEQ is not addressed.

       Because the Legislature has vested the TCEQ with the exclusive jurisdiction to

determine water rights, the Papes were required to exhaust their administrative remedies

before resorting to the courts.

       B. Separation of Powers. Separation of powers is expressly guaranteed by the

Texas Constitution, which provides:

       The powers of the Government of the State of Texas shall be divided into
       three distinct departments, each of which shall be confided to a separate
       body of magistracy, to wit: Those which are Legislative to one; those which
       are Executive to another, and those which are Judicial to another; and no
       person, or collection of persons, being of one of these departments, shall
       exercise any power properly attached to either of the others, except in the
       instances herein expressly permitted.

TEX. CONST. art. II, § 1.

       The separation of powers doctrine is violated “when one branch of government

assumes or is delegated a power ‘more properly attached’ to another branch.” Salinas v.

State, 523 S.W.3d 103, 106-07 (Tex. Crim. App. 2017) (quoting Ex parte Lo, 424 S.W.3d 10,

28 (Tex. Crim. App. 2013) (opinion on rehearing)). However, the Texas Constitution, as

noted above, permits a transfer of powers from one branch to another when expressly

permitted by another provision of the Constitution. In the present case, the Texas

Constitution specifically authorizes the authority given to the TCEQ. See TEX. CONST. art.

16, § 59.



Pape Partners v. DRR                                                                 Page 7
       The Papes rely on Bd. of Water Engr’s v. McKnight, 111 Tex. 82, 86, 229 S.W. 301, 301

(1921), which struck down previous statutory provisions authorizing the Board of Water

Engineers to determine “the relative rights of the various claimants” to use State waters.

However, art. 16, § 59 had not been adopted when the statutes involved in McKnight were

considered.        Corzelius v. Harrell, 143 Tex. 509, 512, 186 S.W.2d 961, 963 (1945).

Additionally, the Water Rights Adjudication Act passed in 1967, authorizing the

administrative processes used by the TCEQ, is constitutional and not a violation of

separation of powers. In re Adjudication of the Water Rights of Upper Guadalupe Segment of

Guadalupe River Basin, 642 S.W.2d 438, 442 (Tex. 1982).

       The legislative scheme giving jurisdiction to the TCEQ to determine water rights

does not violate the separation of powers clause in the Texas Constitution.

                                       V. Conclusion

       After a de novo review, we conclude that the trial court did not err in granting

DRR’s motion to dismiss. We overrule the Papes’ sole issue and affirm the judgment of

the trial court.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
       (Chief Justice Gray dissenting with opinion)
Affirmed
Opinion delivered and filed January 29, 2020
[CV06]


Pape Partners v. DRR                                                                  Page 8
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