### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00758- CV

Randal A. Hend ricks, Trustee, A ppellan t

v. Texas Com m ission on En vironm ental Quali ty and Harris County F resh Wate r Supp ly District No. 61, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0133 1, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Randal A. Hendr icks, Trustee , appea ls a district court judgme nt dismiss ing, for want of subj ect- matter jurisdiction, his suit for judicial revie w challeng ing an order of the Texas Commi ssion on Environmental Quality (“the Commi ssion” ) approving the issuance of bonds by the Har

ris County Fr esh Water Supply District No. 61 (“the District”). The district court dismiss ed Hend ri ck s ’s suit on pleas to the jurisdiction asser ting that Hendr icks had failed to comply with the statutory p re requisit e of filing his petition for judicial revie w within thirty day s afte r the “ef

fec tive date” of the challeng ed order

. See Tex. Water Code An n. § 5.351(a) , (b) (West Supp. 2010). Although it i s undisputed that Hendr icks did not file his petition within thirty day s afte r the Commi ssion issued the order throug h its executive direc tor—the date on which the orde r is made eff

ective under the Commi ssion’s r ules—Hendr icks arg ues that his petition was nonetheless timely beca

use he filed it within thirty day s afte r h i s m otion to the Commi ssionto overturn the decision was overr u l ed b y o p eration of law. Be cause Hendr icks’s arg uments are square ly contra

ry to this Court’s controlling precede nts, and he does not persua de us that these decisions either can be distinguished or should be revisited, we will aff i rm t h e district court’s judgme nt of dismissal.

Th e u n d erly ing administrative proce eding conce rns a Marc h 2009 application by the District for Commi ssion approva l, under section 49.181 o f t he water code, of the District’s issuance of $8,630,000 in bonds to financ e cer tain eng ineer ing projec ts

. S ee i d

. § 49.181(a) (West 2008) (entity such as District “may not issue bonds unless the commission deter mines that the projec t to be financ ed by the bonds is fea sible and issues an order approving t h e i s s u an ce o f the bonds”). The proposed projec t pay ments included reimbur s em en t s to various develope rs, including Hendr icks, for fac iliti es they had constructe d for the District’s use. The Commi ssion has deleg ated its authority t o ac t o n s uch applications to its executive direc tor. See id. § 5.122(a) (West Supp. 2010); 30 Tex. Admin. Code § 50.131(a) , (b)( 5) (2011) (Tex. Comm’n on Envtl. Quality , Purpose and Applicability ). Ultimately , o n Fe bruar y 9, 2010, the executive direc tor issued an order approving the projec ts and bond issue. I nsisting that the order should have included additional lang uag e requiring the District to pay him reimburse ment upon his tender ing convey ance documents for cer

tain fac iliti es, He n d ri cks filed a Marc h 5, 2010 motion to overturn the

1 executive direc tor’s decision. See Tex. Water Code Ann. § 5.122(b) (West Supp. 2010) (authorizing

The parties indicate that Hendr icks and the District have been embroiled in a larg er dispute 1 conce rning Hendricks’s entitlement to reimburse ment for expenditures he incurre d in purcha sing and constructing cer

tain fac iliti es for the District. A detailed history of this dispute is unne cessa ry to resolve the immediate issues befor e us. 2appea l of executive direc tor’s decision to Commi ssion); 30 Tex. Admin. Code § 50

. 1 3 9 (2 0 1 1 )

(Tex. Comm’n on Envtl. Quality , Motion to Overturn Exec. Dir’s. D ecision) ( authorizing pe rsons to file with Commi ssion motion to overturn “the executive direc tor’s action on an application”)

. The Commi ssion took no action on the m otion and it was overruled by opera tion of l aw on Marc h 29, 2010. See 30 Tex. Admin. Code § 50.139(f) (1) (“U nless an extension of time is g rante d, if a motion
to overturn is not acte d on by the commission within 45 day s afte r the date the ag ency mails notice of the sig ned per

mit, approval, or other

action of the executive direc tor, the motion is denied”). Subsequently , on April 27, 2010, Hendr icks filed suit for j u dicial revie w of the Commi ssion’s order

. His suit was predic ated on section 5.351 of the water code, which authorizes

a “per son aff

ecte d by a ruling , order , decision, or other ac t o f t h e co m mission” to obtain judicial revie w of the order , decision, or act by filing a petition for revie w “within 30 day s afte r the eff ective date of the ruling , order , or decision.” See Tex. Water Code Ann. § 5.351(a) , (b). Both the Commi ssion a

nd the District asser

ted pleas to the jurisdiction arg uing that Hendr icks had failed to fi l e h i s petition within 30 day s afte r the order ’s “ef fec tive date” —Fe bruar

y 9, 2010, when the

ex ecutive direc tor signe d the order

. Be cause Hendr icks did not file his petition until April 2 7 , 2 0 1 0

— o v er seventy -five day s later—the Commi ssion and the District rea soned that Hendr icks failed to c omply

with this statutory prer equisite for suit

. The dist rict court gr anted both plea s and dismiss ed He ndricks’s suit. Hendr icks appe als.

I n a single issue on appea l, Hendr icks urg es that the district court err ed in dismiss ing his suit beca

use he filed it less than thirty day s afte r Marc h 29, 2010, the date his motion to overturn

3the Februa ry 9, 2010 order was overruled by opera tion of l aw . I n He n d ricks’s view, the date his

2 motion to overturn was overr uled is proper ly the “ef

fec tive date” of the Fe bruar y 9, 2010 order

. Our resolution of that q uestion turns on construction of water code section 5.351, which prese nts a question of law t h at we re v i ew de novo, see State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006) (statutory construction prese nts questi o n o f l aw that we revie w de novo), as does the ultimate deter mination of whether the district court had subject-matter jurisdiction o v er Hendricks’s suit,

see Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004) (whe ther court has subject- matter jurisdiction is question of law).

The Commi ssion’s rules expli citly provide that the Feb ru ar y 9 , 2010 order signe d by the executive direc tor was eff ective on that day

. See 30 Tex. Admin. Code § 50.135 (2011) (Tex. Comm’n on Envtl. Quality , Effe ctive Date of Ex ec. Dir. Action) (“[a] permit or other approva l is eff ective when signe d by the executive direc tor, unless otherwise specifie d in the permit”). 3 Hendr icks urg es that the provision must be rea d in conjunction with statutes and rules requiring him to exhaust administrative reme dies, includin g fi l i n g a motion to overturn, in order to seek judicial revie w from the Commi ssion’s Fe bruar y 9, 2 0 1 0 o rd er. See Tex. Water Code Ann.

Hendr icks took the position b ef o re t h e d i strict court that he intended to sue only 2 the Commi ssion and that the District was not proper ly a party

. On appea l, Hendr icks has simil arly purported to name only the Commi ssion as appellee

. Howeve r, the judgme nt below g rante d pleas to the jurisdiction filed by both the Commi ssion and the District, and both defe ndants have filed briefs on appea l. Reg ardle ss of whether the District is proper ly a party to this appea l or the district-court proce eding s, it rema ins, as we explain below, that the d istrict court lacke d subject-matter jurisdiction over Hendr icks’s suit. See University of Tex

. Sw. M ed. Ctr. v. Loutzenhiser , 140 S.W .3d 351, 358 (Tex. 2004) (cour

ts, including appellate courts , ma y d e te rmine subject-matter jurisdiction sua sponte and at any time); Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 445-46 (Tex. 1993) (same)

. There is no contention that the Fe bruar y 9, 2010 order specifie d a differ ent eff ective date. 3 4§ 5.1 2 2 (b) (per son aff ecte d by executive direc tor’s action may appea l to commission unless action reg ards fede ral opera ting permit or unless commission rule s p ec i fi es action is final and appea lable decision); 30 Tex. Admin. Code § 50.139. I n Hendr icks’s view, those rules contemplate

a specific sequenc e—exhaustion of administrative reme dies, including the Commi ssion’s denial of

a motion to overturn, prec edes judicial revie w, such that an order is not “ef fec tive” until exhaustion is complete. T h i s C o u rt has previously held square ly to the contra ry . Rely ing in part on subsection (d) of section 50.139 of administrative code title 30, which states t h at an action by the executive direc tor is not aff ecte d by a motion to over t u rn, we have conclude d that filing a motion to overturn does not chang e the eff ective date of a

n order and, ther efor e, does not ser ve to extend the deadline for filing a petition for judicial revie w under water code section 5.351. City of Austin v. Texas Comm’n o n E n vtl

. Quality , 303 S.W .3d 379, 382-84 (Tex. App.—Austin 2009,

no pet.); W

est v. Texas Comm’n on Envt l

. Qu a l ity , 260 S.W .3d 256, 263 n.8 (Tex. App.—Austin 2008, pet. denied) ; see 30 Tex. Admin. Code § 50.139(d) (“A n action by the executive direc tor under this subchapte r is not aff ecte d by a motion to overt u rn fi l ed under this section unless expressly order ed by the commission.”); see also Texas Comm’n on Envtl. Quality v. Kelsoe , 286 S.W .3d 91, 96-97 (Tex. App.—Austin 2009, pet. denied) (“nothing in t h e s t at u te or rules makes the TCEQ’s notice of its decision on a motion to o v er t u rn a t rig g ering event for seeking judicial revie w”) ; Heat Energy Advanc ed Tech., Inc. v. W est Dallas Coal. for Envtl. Justice , 962 S.W .2d 288, 293 (Tex. App.—Austin 1998, pet. denied) (noting that to prese rve rig ht to judicial revie w, appellee had to file petition before Commi ssion ruled on motion for rehe aring ).

5Hendr icks urg es us to revisit W est and City of Austin , insisti ng that they contra dict “applica ble s tatutes and T CEQ rules” compelling exhausti on of admini strative remedies—which, in his view, contemplate that exhaustion must be completed befor e judicial revie w must be soug ht. Hendr icks seeks support in subse ction (g ) of section 50.139 of administrative code title 30, urg ing that this Cour t ’s p re cedents have overlooke d that provision and that the provision demonstrates the Commi ssion’s intent t h at suits for judicial revie w be filed “only afte r its internal proce ss has been exhausted, i.e. throug h filing and obtaining a ruling on a motion to overturn.” Section 50.139, subsection (g ) states, in per tinent part:

When a mot ion to overturn is denied under subs ection (f) of t h i s s ec tion, a mot ion for rehe aring does not need to be filed as a prer equisite for appea l.

. . . I f applicable , the commission decision may be subject to judicial revie w under Texas Water Code, §5.351, or Texas Hea lth and Safety Code, §§361.321, 382.032, or 401.341.

30 Tex. Admin. Code § 50.139(g ). I n contra st, the Commi ssion const ru es s u b section (g ) mere ly
to acknow ledg e that judicial revie w may be also available for the commi s s i o n d ec i s ion that was the subject of the motion to overturn, not a s stating or imply ing a ny sort of seque ntial relationship betwee n the two reme dies. We defe r to an ag ency ’s construction of its own rules that is rea sonable and not inconsistent with the rule’s text , see Vista Healthcare , Inc. v. Texas Mut

. In s . C o . , 324 S.W .3 d 2 64, 272 (Tex. App.—Austin 2010, pet. denied) , and we conclude that the Commi ssion’s construction of s u b s ection (g )—espe cially in the context of other rules providing that the orde r wa s eff

ective upon the executive direc tor’s signa ture and not a ffe cted by

the motion
to ove rturn—mee ts this standard. Consequently , we g ive it de fer ence and follow our rea soning in City of Austin that “[t] he fact that an a venue f or administrative review was open did not fore close

6judic i al re v i ew from being available , and the fac t that administrative revie w was soug ht did not

fore close judicial re view fr om cea sing to be available .” 303 S.W.3d at 384.

Hendr icks also arg

ues more narr owly that even if City of Austin and W est

wer e corr ectly decide d, their rea soning does not extend to the Commi ssion’s bond-appr oval order s. He emphasizes that the water code require s that the Attorney Gene ral approve the District’s bonds befor e they are delivere d to purcha sers. See Tex. Water Code Ann. § 49.184 (West 2008) (“[b]efore bonds issue d by a district are delivere d to the purcha sers, a cer tified copy of all proce eding s rela ting to org anization of the district for first bond iss ues and issuance of the bonds and other rele vant information shall be sent to the attorney g ener al,” who “shall car efully examine the bonds, with reg ard to the rec ord and the constitution and laws of this state g overning the issuance of bonds, and

. . . officia lly approve and cer tify the bonds if he or she finds that they confor m to the rec ord and the const i t u t i o n and laws of this state and are valid and binding obliga tions of the district”). Hendr icks further observe s that in a November 2 0 0 2 l et t er addre ssed to “All Bond Counsel,” the Offic e of the Attorney Gene ral has require d applicants seeking approva l of bond order s to wait
to sub m i t ap p l i cations until afte r the deadline for filing motions to overturn has passed and
to include a cer

tification that no motion to overturn is pending

. There fore , Hendr icks deduce s, the Commi ssion’s bond order s are not “ef fec tive” until they are “cle ar of any possibili ty of being
overturne d by the TCEQ Commi ssioners.” W e are unpersua ded that the Attorney Gene ral’s ad m inistrative require ments rela ting to his cer tification of bonds impacts our analy sis o f wh en the Commi ssion’s approva l of a bo n d issue become s “ef fec tive” for purposes of water code

7section 5.115. That issue, ag ain, is controlled by the Commiss ion’s rule e x plicitly providing that 4 “a permit or other approva l is eff ective when signe d by the execut i v e d i rector,” 30 Tex. Admin. Code § 50.135, and this Court’s prec edents. City of Austin , 303 S.W .3d at 382-84; W est , 260 S.W .3d at 263 n.8. Finally , Hendr icks insists that even if he fa iled to timely file his pe tition for revie w of the Fe bruar

y 9, 2010 order , per se, he has achie ved the same substantive e ffe ct by filing his suit within thirty day s afte r the Commi ssion’s denial of his motion to overturn. As wi t h Hendr icks’s

ar gument conce rning the “ef fec tive date” of the order , this Court has previously reje cted s i m i l ar contentions. See City of

Austin , 303 S.W .3d at 384-85. As we held in City of Austin , the denial of

a motion to overturn does not establish any rig hts or obliga tions, but mere ly constitutes a ref usal to overturn or modify the order that did establish rig hts and obliga tions. See id. at 385. Consequently , the denial is not an independently revie wable decision. See id. I n short, to obtain judicial revie w of the Fe bruar

y 9, 2 0 10 order , Hendr icks was require d to file his petition within thirty day s afte r that date; he failed to do so, and he can not salvag e his wa i v ed complaints in the guise of seeking judicial revie w from the de nial of his motion to overturn. See id.

To be c lear , Hendr icks does not arg ue that the C ommissi on’s order becomes “ef fec tive” 4 only afte r the bonds are cer tified by the Attorney Gene ral. This is understandabl e, b ec au se such an arg ument would imply that a Commi ssion’s order approving a bond issue would never be subject to judicia l r eview. This is beca use once the Attorney Gene ral approve s the bonds, the comptroller “shall reg ister” them, and once they are approv ed an d re g istered, “they shall be incontestable in any court or other forum, for any rea son . . . .” Tex. Water Code Ann. § 49.184(c) , (d) (West 2008). Hendr icks’s arg

ument is mere ly that the Attorney Gene ral’s proce dures for cer tify ing bonds, which appar ently awa it the Commi ssion’s final dispositi on of motions to overturn, sh o u ld inform our analy sis of when the Commi ssion’s order approving the bond issue i s “e ff ec t ive” for purposes of section 5.351. 8By failing to comply

with the statutory

prer equisite of filing his petition for review within thirty day s afte r the “ef fec tive date” of the Commi ssion’s Fe bruar y 9, 2010 order , Hendr icks failed to invoke the district court’s subject-matter jurisdiction under wat er code section 5.351, and the dist rict cour

t did not err in dismissi ng his suit for want of subj ect- matter jurisdi ction. We

overr ule Hendr icks’s issue and a ffirm the district c ourt’s judg ment of dismissal. 5

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: June 15, 2011

On April 20, 2011, the District filed a motion to expedite consideration of this appea l. We 5 dismiss the District’s motion as moot. 9