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IN THE SUPREME COURT OF TEXAS

No. B-9733

CHARLES G. HOOKS, JR., et ux.,
PETITIONERS

V. FROM TRAVIS COUNTY
TEXAS DEPARTMENT OF WATER

RESOURCES, et al., THIRD DISTRICT

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RESPONDENTS

This is an action by downstream riparian landowners con-
testing an order granting a waste discharge permit. Charles G.
Hooks, Jr. and Irma Hooks appealed an order by the Texas Department
of Water Resources which granted a waste discharge permit to

George H. Musterman, Inc. The district court upheld the action
of the Department. The court of civil appeals reversed and rendered
judgment that the cause be dismissed holding that the Hooks lacked

standing to contest the order of the Department. 602 S.W.2d 389.
We reverse the judgment of the court of civil appeals and remand
the cause to that court for consideration of the merits.

George H. Musterman, Inc. plans to develop a residential
subdivision northwest of Houston in Harris County, Texas which
will have an ultimate population of 7,500. Because there are no
existing facilities in the area, Musterman plans to build a sewage
treatment plant to process domestic waste from the subdivision.

He applied for and was granted an effluent discharge permit by the
Texas Department of Water Resources. The permit authorizes
discharge of wastewater into’Willow Creek at an average daily rate
of 750,000 gallons with a maximum discharge of 2,250,000 gallons

per day. In its order granting the permit, the Department found

that the effluent would have no significant effect on water
quality in Willow Creek or groundwater in the area, nor would

fish or wildlife in the area be endangered.

Willow Creek is a meandering stream having intermittent flow
which winds through a heavily wooded area. The creek is bone-dry
on many occasions and primarily carries storm water. Irma and
Charles G. Hooks, Jr. own and reside on a tract of land adjacent to
and downstream from the proposed sewage treatment plant. Willow
Creek flows through the Hooks' tract and has been used for watering
their stock.

The Hooks protested Musterman's application for a waste
discharge permit alleging that they owned riparian land downstream
from the point of discharge and that they would be persons affected
if the permit were issued. The hearing examiner designated the
Hooks parties "who may be affected by the action that may be taken
as a result of the hearing." gee TEX. WATER CODE ANN. § 26.022.

At the hearing before the Department of Water Resources, the Hooks
objected to the admission of evidence, the action taken by the
hearing examiner, the sufficiency of the findings of fact, and the
legal status of Musterman. Following the hearing, the Department
issued an order granting the permit. The Hooks appealed the
Department's order to district court. After a hearing, the court
affirmed the order granting the permit. From this judgment, the
Hooks perfected an appeal to the court of civil appeals complaining
of the admission of certain evidence, the sufficiency of the

Department's findings of fact and conclusions of law, and Musterman's

right to do business in Texas. The court of civil appeals

rendered judgment that the cause be dismissed on the grounds that

the district court lacked jurisdiction to consider the appeal

because the Hooks lacked standing to contest the Department's order.
The court of civil appeals raised the question of standing

sua sponte. Standing was never raised, plead, briefed, argued,

nor urged by the parties. It appeared for the first time in the

opinion of the court of civil appeals. The court of civil appeals

erred in holding that the Hooks lacked standing.

Under the Texas Administrative Procedure and Texas Register
Act (APA), TEX. REV. CIV. STAT. ANN. art. 6252-13a § 19(a),1
standing to appeal an order of an administrative agency requires
that the case be contested and that the appellant be "aggrieved."
Section 19(a) of the APA provides that "[a] person who has
exhausted all administrative remedies available within the agency
and who is aggrieved by a final decision in a contested case is
entitled to judicial review under this Act." It further provides
"[t]his section is cumulative of other means of redress available
by statute." Ed. The Hooks appealed the order granting the waste
discharge permit pursuant to the judicial review provisions of the
Texas Water Code. Section 5.351(a), TEX. WATER CODE ANN., provides
that "[a} person affected by a ruling, order, decision, or other
act of the department may file a petition to review, set aside,
modify, or suspend the act of the department." The judicial review
provisions of the APA and the Water Code should be read in con-
junction and harmony with each other. The terms "aggrieved" and
"affected" are synonomous and both relate to the requirement that
a person show a "justiciable interest.“ See City of San Antonio
v. Texas Water Commission, 407 S.W.2d 752, 765 (Tex. 1966).

The Hooks are riparian landowners on Willow Creek downstream
from the discharge point of the proposed sewage treatment plant.
The hearing examiner before the Department of Water Resources
designated the Hooks as parties "who may be affected by the action
that may be taken as a result of the hearing." The court of civil
appeals states that they were "proper parties to participate in the

permit hearing." The Department of Water Resources, in briefs

 

1
Statutory references are to Vernon's Texas
Revised Civil Statutes Annotated.

and at oral argument before this Court, concede that the Hooks

are affected or aggrieved by the Department's order. If
constructed, this facility will discharge wastewater through the
Hooks' property at a rate of 750,000 to 2,250,000 gallons per day.
Unquestionably, the Hooks will be affected by the Department's
action. We hold that the Hooks have standing to appeal the order
of the Department of Water Resources.

We reverse the judgment of the court of civil appeals and

   

 
    

a"!
ento

,

 

Opinion delivered: February 11, 1981

 

THE SUPREME COURT OF TEXAS

CHIEF JUSTICE PO BOX 12248 CAPITOL STATION CLERK
JOE R GREENHILL AUSTlN‘ TEXAS 787“ GARSON R JACKSON
JUSTICES EXECUIIVE ASS'T
JACK POPE WILLIAM L. W1LLIS
\r
SEARS ‘ “GEE February 1 1 , 1 981 ADMINISTRATIVE ASS'T

JAMES G DENTON
CHARLES w BARROW
ROBERT M CAMPBELL
FRANKLIN s. SPEARS
c. L RAY

JAMIE P WALLACE

MARY ANN DEFIBAUGH

Mr. L. A. Greene, Jr., Atty
2602 Montrose Square
Houston, Texas 77006

Mr. Brian E. Berwick, Atty
Attorney Genera1's Office
Environmenta1 Protection Division
Supreme Court B1dg.

Austin, Texas 78701

Mr. Ear1 L. Yeake1, III, Atty
Kammerman, Yeake1 & Overstreet

1420 American Bank Tower
Austin, Texas 78701

RE: B-9733: CHARLES G. HOOKS, JR. ET UX. vs. TEXAS DEPARTMENT OF
WATER RESOURCES ET AL.
Third Court of Civi1 AppeaIS No. 13,209
250th District Court of Travis County No. 281,885

Gent1emen:

Today, the Supreme Court of Texas de1ivered an opInion in the above
refeenced cause.

The opinion by Justice Denton reversed the judgment of the Court
of Civi1 Appea1s and remanded the cause to that court for
further consideration of the merits.

A copy of the enc1osed opinion is being maIIed to Justice

Bob Smith, then sitting for the Third Court of Civi1 Appea1s,
Judge Hume Cofer, then sitting for the 250th District Court and
Travis County District C1erk, Mr. John Dickson.

Very tru1y yours,

GARSON R. JACKSON, C1erk

Enc1. opinion Mary M-L, Wakef1e1d, C ef Deputy

 

THE SUPREME COURT OF TEXAS

CHIEF JUSTICE Po BOX 12243 CAPITOL STATION CLERK
JOE R. GREENHILL AUSTIN TEXAS 787 u GARSON R. JACKSON
lﬂﬂmAﬁT
JUSTICES EXEC
. Lus
JACKPOPE meUAMI.wn
SE“ MCGEE FEbrua YIY 1 2 , 1 981 ADMINISTRATIVE ASS‘T
“MES G DEMON MARY ANN DEFIBAUGH

CHARLES W BARROW
ROBERT M CAMPBELL
FRANKLIN S. SPEARS
C. L. RAY

JAMES P WALLACE

Mr. L. A. Greene, Jr., Atty
2602 Montrose Square
Houston, Texas 77006

Mr. Brian E. Berwick, Atty
Attorney Genera1's Office
Environmenta1 Protection DiVision
Supreme Court B1dg.

Austin, Texas 78701

Mr. Ear1 L. Yeake1 III, Atty
Kammerman, Yeake1 & Overstreet
1420 American Bank Tower
Austin, Texas 78701
RE: 8—9733: CHARLES G. HOOKS, Jr. et ux
vs.

TEXAS DEPARTMENT OF WATER RESOURCES ET AL.
Gent1emen:
Enc1osed p1ease find a copy of the judgment of the Supreme Court
of Texas in the above referenced cause as said judgment appears in
the minutes of this Court under the date of February 11, 1981
This is the Judgment that wi11 issue in mandate form to the
1ower court if no motion for rehearing is fi1ed or if a f11ed
motion for rehearing TS overru1ed.

Very tru1y yours,

GARSON R. JACKSON, C1erk

 

Enc1' copy of Judgment

 

THE SUPREME COURT OF TEXAS

CHIEF  PO BOX 12248 CAPITOL STATION 
JOE R. GREENHILL AUSTINy TEXAS 78711 GARSON R. JACKSON
Wﬁciﬁsm” EXECUTIVE ASS'T
SEARS MCGEE MarCh 2 , .1] WILLIAM 1" WILLIS
JAMES G DENTlON .ADRHNISTRATIVE ASS’T
CHARLES W BARROW MARY ANN DEFIBAUGH

ROBERT M CAMPBELL
FRANKLIN s. SPEARS
c. L RAY

JAMES P WALLACE

Mrs. Margie Love, Clerk
Third Court of Civil Appeals
Supreme Court Building
Austin, Texas 78701

RE: CHARLES G. HOOKS, JR. ET UX. vs. TEXAS DEPARTMENT OF WATER RESOURCES
et al.

No. B-9733 in the Supreme Court
No. 13,209 in the THird Court of Civil Appeals

Dear Mrs. Love:

The judgment of the Supreme Court of Texas is now final in the above
referenced cause. As Rule 507, Texas Rules of Civil Procedure, has
been satisfied, we have issued the mandate as of this date.

Enclosed with the mandate is a certified copy of our cost bill
showing the charges and payments as reflected by the record for
your use in settlement between the parties.

Very truly yours,

GARSON R. JACKSON, Clerk

 
   

Mary M Wakefield
Chief eputy

Encl: mandate w/opinion
cost bill

CC. letter only to
Mr. Brian E. Berwick-AG's Office

N . a L Yeakel-Aus in
M?. E.rA. Greene, Jr.- ouston

P. S. The original record and all papers filed in your Court are being returned
to you today.

