### 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. 03-13-00528- CV

Appellan ts, Texas G eneral Land Of fi ce and Texas Com m ission on En vironm ental Quali ty//Cross-Appellant, Crystal Cle ar Wate r Supp ly Corporation

v. Appellee, Cryst al Clear Wat er Suppl y Corporat ion// Cross-A ppellees, Texas Ge neral Land

Of fi ce and Texas Com m ission on En vironm ental Quali ty

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0030 5, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

O P I N I O N

The Texas Commi ssion on Environmental Quality (t h e Commi ssion) g rante d the petition of the Texas Gene ral L and Offic e (the GL O) for expedited rele ase of a portion of its proper ty from the cer

tificated service area of Cry stal Clear W ater Supply Corporation (Cry stal Clear)

. See
Tex. Water Code § 13.254(a- 5) (providing for expedited rele ase of proper ty not rec eiving water or

sewe r service from cer

tificate holder). I n its suit for ju d i cial revie w of the Commi ssion’s order , Cry stal Clear contende d that the Commi ssion err ed in g ranting the GL O’s petition for dece rtification beca use t he st atutory require ments for ex pedited relea s e p u rsuant to section 13.254(a-5) were not
met. Specifica lly , Cry stal Clear arg ued that the proper ty the GL O soug ht to have dece rtified was in fac t “re ceiving water service ” from Cry stal Clear and thus was not elig ible for expedited rele ase under section 13.254(a- 5). Cry stal Clear also asser ted that the dece rtification petition should nothave been approve d beca use the GL O excluded from its reque st for expedited rele ase cer tain other
trac ts it owned within Cry stal Cl ea r’ s cer tificated are a. I n addition to its suit for judicial revie w, Cry stal Clear soug ht decla rations (1) reg arding the proper stat u to r y c o n s tr u c ti o n o f cer

tain provisions of the Water Code and rela ted ag ency rules and (2) that the Commi ssion’s order violated its
const itutional rig hts to due proce ss and due course of law under the United States and Tex as Constit utions. The Commi ssion fi l ed a plea to the jurisdiction challeng ing the district court’s subject-matter jurisdiction over the reque sts for decla ratory relief

. After a hear ing, the district court

reve rsed the Commi ssion’s order g ranting the GL O’s petiti o n fo r dece rtification but g rante d the Commi ssion’s plea to the jurisdiction as to Cry stal Clear’ s claims for decla ratory judgme nt. I n this
appea l, the Commi ssion and the GL O challeng e the part of the district court’s judgme nt that reve rsed the Commi ssion’s dece rtification order ; by cross-a ppeal, Cry stal Clear challeng es the portion of the judgme nt that g rante d the Commi ssion ’s p l ea t o the jurisdiction. As to the merits of the dece rtification order , we will reve rse that part of the district court’s judgme nt and rende r judgme nt aff irming the Commi ssion’s order

. See Tex. Gov’t Code § 2001.174(1). We will aff irm the portion of the judg ment that g rante d the Commiss ion’s plea to the jurisdiction.

F ACTUAL AND P ROCEDURAL BACK GR OUND Cry stal Clear is a water -supply corpor ation reg ulated by the Commi ssion. See Tex. Water Code § 13.001-.515 (establishing compre hensive reg ulatory sy stem to r eg ulate reta il public utilit ies); .002(19) (“r etail public utilit y ” includes water -supply corpor ation opera ting, maintaining,

or controlling fac iliti es for providing potable water service for compensa tion). Cry stal Clear holds

a cer tificate of convenie nce and nece ssity (CCN) that authorizes it to be the exclusive water -ser vice

2provider within a specific ally define d territory , which is ref err ed to as its “ce rtificate d are a.” See id. § 13.244 (setting forth require ments for app l i ca tion for CCN). The GL O owned approximately 1,984 acr es of land that was located within Cry stal Cle ar ’s ce rt i fi cate d are a. The GL O filed a 1 petition with the Commi ssion seeking to remove approximately 1,842 acr es of that land (the Dec ertified Property ) from Cry stal Clear’ s cer tificated are a pursuant to Water C o d e s ec t i on 13.254(a- 5). Section 13.254(a- 5) provides that the owner of a trac t of land that is 25 acr es or larg er and located in cer

tain counties, includin g C o m al C ounty , may petition for, and is entitled to, expedited rele ase of that trac t from a ce rt i fi cate d are a if the trac t is “not rec eiving water or sewe r

s er v i ce .” Id. § 13.254(a- 5). The 1,842 acr es the GL O soug ht to dece rtify was composed of five 2 contig uous tracts of la

nd, eac h of which was gre ater than 25 acr es in size. The GL O provided the Commis s io n with deeds of convey ance that it repr esente d corr esponded to eac h of the separ ate trac ts. Ex cluded from the reque st for expedi t ed rele ase wer e approximately 151 acr es of the GL O’s
proper ty , which consisted of five additional trac ts (the Ex cluded Property ) that wer e adjac ent to the 3
Dec ertified Prope rty

.

As we w ill dis cuss more f ully below, the leg islature has since remove d 151.846 acr es of 1 the GL O’s proper

ty from Cry stal Clear’ s service are a. See Tex. Spec. Dist. Code § 7206.001-.005 (dissolving Cry stal Clear Water Supply Corporation, cre ating Cry stal Clear Special Utility District, and def ining Cry stal Clear’s initial district territory ). A landowner may not seek expedited rele ase of su ch a t ra ct if it is located in “a platted 2 subdivision actually

rec eiving water

service or sewe r ser

vice.” Tex. W ater

Code § 13.254(a- 2). This is the acr eag e the leg islature later remove d from Cry stal Clear’ s service are a when it 3 was conver

ted from a water supply corpor ation to a specia l utilit y district. See Tex. Spec. Dist. Code § 7206.001-.005. 3I n its petition, the GL O stated that the Dec ertified Property was not rec eiving water

or sewe r service from Cry stal Clear. The petition was supported b y t h e affidavit of Hal Croft, Deputy Commi ssioner of the GLO’ s Asset Manag ement Division, in which he aver red that “[the
Dec ertified Pr o p er ty ] is not rec eiving water or sewe r service from Cry stal Clear Water Supply Corporation.” I n its brief in support of the petition, the GL O stated that there wer e “no active water

m et ers or water connec tions on and no fac iliti es providing curr ent service to the [Decer t i fi ed Property ].” (All parties ag ree that the Dec ertified Property was not rec eiving sewer service from Cry stal Clear.) Acc ording to the GL O, there was “one abandone d, empty meter box on the easte rn portion of the prope rty , which Cry stal Clear itself c lassifies as inoper ative.”

Cry stal Clear filed a response in opposition to the petition in which it asser ted, first, that the GL O could not “s el ec t i v ely ” car ve out a portion of its proper ty that had no active water

connec tions—the Dece rtified Proper ty —and then seek expedited r elea se of that proper ty . Rather, Cry stal Clear contended that the te n contig uous tracts owne d by the GL O should be consider ed as

a single trac t of approximately 2,000 acr es and, by virtue o f t he exis tence of sever al active water

connec tions on the trac ts comprising the Ex cluded Property , the entire 2,000 acr e trac t shoul d be considere d to be “re ceiving water service ” from Cry stal Clear. Cry stal Clear also arg ued that, even if it was proper for the GL O to seek expedited rele ase of only the Dec erti fi ed Property , sufficie nt fac iliti es exis ted on and near the Dec ertified Property that it too was “re ceiving water service ” and there fore could not qualify for e x pedited re lease under se ction 13.254(a- 5). The C o m m ission conclude d that the GL O had satisfied the criter ia in section 13.254(a- 5) and approve d the reque st for expedited rele ase of the Dec ertified Property from Cry stal

4Clear’ s cer tificated a rea . Cry stal Clear’ s motion for rehea ring was overruled by opera tion of l aw. Cry stal Clear then filed a suit for judicial revie w in Travis County district court. I n the district court, Cry sta l C l ea r aga in asser ted that the GL O could not car ve out a portion of its proper ty for dece rtification and, in a

ny event, that the D ece rtified Property was “ rec eiving water

service ” fr om Cry stal Clear. Cry stal Clear alleg ed that it had “sig nificant phy sical fac iliti es, including water lines,

connec tions, wells, plants, and other fac iliti es, both located on, near and adjac ent to the Dec ertified Property that are committed a nd/or used by

Cry stal Clear to provide water service .” Cry stal Clear also alleg ed that it had secur ed a diverse, long- term supply of water in order to serve its cer tificated

are a. Cry stal Clear arg ued that when “ a utility has ‘f acilities’ in conne ction with cer tain proper

ty , i t provides ‘service ’ t o that proper ty .” Cry stal Clear also soug ht decla ratory relief pursuant to th e Uniform Dec lara tory J udg ments Act (UDJA) and the Administrative Pro ce d ure Act (APA). See
Tex. Civ. Prac. & Rem. Code § 37.009; Tex. Gov’t C ode § 2001.038. Specifica lly , Cry stal Clear
soug ht decla

rations confirming its proposed construction of cer tain sections of the Water Code and rela ted admini strative rules, as well as declara tions that the C ommissi on’s approval of t he GL O’s petition violated its rig hts to due proce ss under the United States Constit ution and due course of law under the Texas Consti tution. See U.S. Const. amends. V, I V; Tex. Cons t. art. I , § 19.

The Commi ssion filed a plea to the ju ri s d i ct i o n in which it asser ted that Cry stal Clear’ s claims for decla

ra t o ry j u d gm ent should be dismiss ed beca use (1) decla

ratory relief is not available to resolve issues alre ady pending befor e the court in the same suit, and (2) the claims wer e barr ed by sovere ign immunity . The GL O interve ned in the ca se in support of the Commission.

5Following a non-evide ntiary hear ing, the trial court rende red judgme nt g ranting the

Commi ssion’s plea to the jurisdiction as to Cry stal Clear’ s claims for decla ratory relief but reve rsing the Co m m i s s i o n ’s order approving the GL O’s reque st for expedited rele ase of the Dec ertified
P ro perty from C ry stal Clear’ s cer tificated area

. The GL O and the C ommissi on eac h perf ec t ed an
appea l challeng ing the trial court’s re v er s al o f the Commi ssion’s order as to dece rtification, and Cry stal Clear perf

ecte d a cross-a

ppeal complaining that the trial court err ed in g ranting the Commi ssion’s plea to the jurisdiction as to Cry stal Clear’s c laims for dec lara tory relief

.
Judicial R evie w of the Com m ission ’s Order Approving the GLO’s De certification Petition

Section 13.381 of the Water Code provides that any party to a proce eding befor e the Commi ssion is entitled to judicial revie w under the substantial-evidence ru l e. Tex. Water Code § 13.381. Section 13.002 define s “proc eeding ” to mean “any hear ing, investiga tion, inquiry , or other fac t-finding or decision-making proce dure” under Water Code chapte r 13. Id. § 13.002(16). Thus,

we must revie w the Commi ssion’s decision in this case “throug h the prism of substantial evidenc e revie w.” Texas W

ater Comm’n v. Lakeshore Util. Co. , 877 S.W .2d 814, 818 (Tex. App.—Austin 1994, writ denied)

. Under this standard, we may not, with res p ect to questions committed to the Commi ssion’s discretion, substitut e our judgme nt f or that of the Commi ssion on the weig ht of the

ev i d en ce. See APA § 2001.174. We must, howeve r, reve rse the Commi ssion’s decision i f i t prejudice s sub s tantial rig hts beca use its finding s, infere nces, conclusions, or decisions (1) violate

a constitutional or sta t u tory provision; (2) exceed the Commi ssion’s statutory authority ; (3) wer e made throug h unlawful proce dure; (4) are aff ecte d by oth er er ro r o f law; (5) are not rea sonably supported by

substantial evidence considering the re liable and pr obative evide nce in the rec ord as

6a whole; or (6) are arbitra ry or capr icious or char acte rized by an abuse of discretion or a clea rly

unwar rante d exercise of

discretion. Id. § 2001.174(2).
An ag ency ’s decision is presumed to be valid, and it is supported by substant i al evidenc e if the evidence in its entirety is sufficie n t t o allow reasonable minds to have rea ched the conclusion the a g ency

must have rea ched to justify the disputed action. Texas State Bd. of Dental Exam’ rs v. Sizemore , 759 S.W .2d 114, 116 (Tex. 1988). The evidenc e in the record may preponde rate ag ainst the ag ency ’s decision y et still provide a rea sonable basis for the decision and there by meet the substantial-evidenc e standard. Texas Health Facilities Comm’n v. Charter Med.- Dallas, Inc. , 665 S.W .2d 446, 452 (Tex. 1984). The question of whether an ag ency ’s decision is supported by substantial evidenc e is a q u es t i o n of law, and we owe no defe renc e to the district court’s decision. See Firemen’ s & Policeme n’s Civ. Serv. v. Brinkmey er , 662 S.W .2d 953, 956 (Tex. 1984). We revie w questions of statutory construction de novo. See Railroad Comm’n v. T ex as Citi zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 624 (Tex. 2011). The Commi ssion’s order rec ites its conclusion that the GL O “satisfied all criter ia to be rele ased from [C ry stal Clear’ s] CCN” pursuant to section 13.254(a-5 ). Acc ording ly , the Commi ssion impl iedly

found as matter s of fac t tha t the trac ts comprising the Dec ertified Prope rty

wer e eac h at least 25 acr es in siz e, wer e located in an elig ible county , and wer e not “re ceiving water

or sewe r service .” See Tex. Water Code § 13.254(a- 5). The district court’s judgme nt r ever sed the Commi ssion’s order

. The issues raised by the Commi ssion and the GL O in their appea ls reduc e to
two principal disputes: (1) whether the Commi ssion had the authority to dece rtify the acr eag e in the
Dec ertified Property even though that proper ty was composed of sever al differ ent trac ts of land and

7even though the GL O owned other contig uous trac ts of land in Cry stal Clear’ s cer tificated are a for which it did not seek dece rtification and which Cry stal Clear asser ts wer e “re ceiving water service ” from Cry stal Clear, and (2) whether the Commi ssion corr ectly found that the GL O proper ty was not “re ceiving water

service ” so as to be e ligible f or expedited dec ertification.

Was the GLO required to apply for dece rtification of all of its property located in Crystal Clear’s certificate d area?

Cry stal Clear arg ues on appea l, as it did befor e the Commi ssion and the district court, that the Commi ssion err ed in approving the GL O’s dece rtification petition beca use that petition did
not s ee k d ec er t i fica tion of all proper ty owned by the GL O in Cry stal Clear’ s cer tificated are a. Specifica lly , Cry stal Clear complains that the GL O d i d not seek dece rtification of the Ex cluded Property —approximately 151 acr es consisting of five contig uous trac ts adjac ent to the Dec ertified Property

. Cry stal Clear a sserts that the tra cts comprising the 151 ac res a re c lear ly rec eiving water service and that if that acr eage an d the Decer tified Property wer e treated as a si ng le t rac t, none of
t h e GLO’s proper

ty would qualify for expedited dece rtification. We understand Cry stal Clear ’s
arg ument to be that by approving a petiti o n t h at d i d not include a reque st to dece rtify both the
Ex cluded Property and the Dec er ti f ie d Pr o p e r ty , th e Co mm ission exceede d its statutory authority and there by committed reve rsible er

ror. See APA § 2001.174(2)( B)

. Cry stal Clear has not identified any statutory support for its position that t h e GL O could not seek expedited dece rtification of less than all of its proper ty located within Cry stal Clear’ s

cer tificated a rea . Section 13.254(a- 5) simply require s that the proper ty soug ht to be dece rtified be

a trac t of land of at least 25 acr es located in cer tain counti es an d t h at i t not be “re ceiving water

8service .” Tex. Water Code § 13.254(a- 5). Eac h of the five trac ts making up the Dec ertified Property

was of the require d siz e and located in an elig ible county , and the Commi ssion nece ssarily found that none of the trac ts was re ceiving water service

. Cry stal Clear does not a

rg ue that a reque st f

or expedited de cer

tification of multipl e
trac ts of land could not be combined in one petition. Rather, Cry stal Clear maintains that be cause the Dec ertified Property was adjac ent to the 151 acr es excluded from the dece rtification petition and beca use in othe r contexts the GL O re fer red to its proper

ty as a “ 2,000-ac re trac t,” the exclusion of the 151 acr es from the dece rtification petition amounted t o i m p er missibl e “g err y mander ing” that deprive d the Commi ssion of authority to approve the petition. We conclude , howeve r, that section 13.254(a- 5) does not contain an “all or nothing” require ment. Acc ording ly , the Commi ssion’s order
was not er

roneous mer ely

beca use it dece rtified less than a ll of the GL O’s prope rty

within Cry stal Clear’ s cer

tificated a rea . I n any event, as previously noted, the 151 acr es that made up the Ex cluded Property has now been remove d by statute from Cry stal Clear’ s cer tificated are a. See Tex. Spec. Dist. Code § 7206.001-.005 (dissolving Cry stal Clear Water Supply Corporation, cre ating Cry stal Clear Special Utility District, and defining Cry stal Clear’ s initial district territory ). Were this Co u rt to acc ept Cry stal Clear’ s arg ument and reve rse the Commi ssion’s order approving the dece rtification petition for that rea son, there would be no prac tical leg al eff ect. Even if the Ex cluded Property should orig inally have been included in the dece rtification petition and would, at that time, have serve d as

an impediment to the Commi ssion’s approva l of the petition, that theore tical impediment no longe r exis ts beca

use that proper

ty has been statutorily remove d from Cry stal Clear’ s cer tificated are a. An

9issue become s moot when a party seeks a ruling on some matter that, when rende red, would not have

any prac tical eff

ect on a then-e x isting controve rsy . See Mee ker v. Tarrant Cnty. C o l l

. Di s t

. , 317 S.W .3d 754, 759 (Tex. App.—For t Worth 2010, pet. denied) ; Texas Health Care Info. Council

v. Seton Health Plan, Inc. , 94 S.W .3d 841, 846-47 (Tex. App.—Austin 2002, pet. denied)

. Be cause

a ruling on Cry stal Clear’ s “g err y mander ing” arg

ument would have no prac tical leg al eff ect on the question of whether the Commi ssion would approve or deny the dece rtification petition if the cause

wer e re manded, that issue is moot. 4

Was the Dece rtified Property “rec eiving water service ”?

Section 13.002 of the Water Code define s “ser vice” as:

any act perf

ormed, any

thing furnished or supplied, and an y fac iliti es or lines committed or used by a reta il public utilit y in the perf ormanc e of its duties under this chapte r to its patrons, employ ees, other reta il public utilit ies, and the public, as well as the interc hang e of f

acilities betwe en two or more reta il public util ities.

Tex. Water Code § 13.002(21). Thus, the term “se rv i ce ” i s of intentionally broad scope and
encompa sses an array of activiti es t hat a reta il public utilit y might eng ag e in as pa

rt of its mission of “providing potable water service or sewe r service , or both, for compensa tion.” See id. 13.002(19) (def ining “re tail public utilit y ”). The question befor e the Commi ssion in the prese nt case , howeve r,

Were this Court to conclude that the Co m m i s sion’s order was err oneous due to alleg ed 4 “g err y mander ing,” its only option would be to reve rse and rema nd the cause for further proce eding s. See Tex. Gov’t Code § 2001.174. Any judgme nt by this Court that would have the eff ect of usurping the Commi ssion’s disc re tion would violate the separ ation-of- power s doctrine of the Texas Constit ution and would be v o i d

. See Sierra Club v. Texas Natural Res. Conservation Comm’n , 26 S.W .3d 684, 688 (Tex. A pp.—Austin 2000) , aff’d , 70 S.W .3d 809 (Tex. 2002) ; Texas Dep’ t of Transp. v. T. Brown Constructors, Inc. , 947 S.W .2d 655 , 6 5 9 ( T e x. A pp.—Austin 1997, pet. denied)

. 10was not whether Cry stal Clear was p r o vi d i n g water service to customers within its cer tificated

are a—or even to some proper t y o wn ed by the GL O—but whether the Dec ertified Property was

rece iving water service from Cry stal Clear. I f it was not, then the proper ty qualified for expedited dece rtification under section 13.254(a- 5). The Commi ssion deter mined that th e D e c e r

ti f ie d Pr operty

was not “re ceiving ” such “ser vice” from Cry stal Clear, i.e., that there wer e no water fac iliti es or lines committed to serving the Dec ertified Property and that Cry stal Clear ha d not perfor med any act or supplied any

thing to the Dec ertified Property rela ted to providing water to that proper ty

. We revie w the Commi ssion’s order under the substantial-evidenc e standard of revie w, which is a rational-ba sis
test to deter

mine whether an ag ency ’s order finds rea sonable support in the rec ord. See Texas Health Facilities Comm’n , 665 S.W .2d at 452-53. 5

As stated above , the GL O attac hed to its petition for dece rtification the af fidavit of Hal Croft, who aver

red that “[the Dec ertified Property ] is not rec eiving water or sewe r service from Cry stal Clear Water Supply Corporation.” I n its brief in support of the petition, the GL O arg ued that there wer e no active water meters or water connec tions on, and no fac iliti es providing water to, the
Dec erti fied P roper

ty

. Acc ording to the GL O, t here was “one abandoned, empty meter box on the
easte rn portion of the pr operty , which Cry stal Clear itself de signa tes as inoper ative.”

Cry stal Clear arg ues that, beca use there wa s n o contested- case hear ing, substantial- 5 evidenc e revie w is inapplicable and we should instead resolve any disputed fac t issues by taking as true all ev i d ence favor able to Cry stal Clear’ s position that it was providing water service to the Dec ertified Property and resolve any doubts in favor of that position. But the Water Code provisions specific to this dece rtification proce eding mandate that we revie w the Commi ssion’s decision under the substantial-evidenc e standard. See Tex. Water Code § 13.381 (“A ny party to a proce eding befor e the commission is entit led to judicial revie w under the substantial evidenc e rule .”). 11I n its response in op p osition to the reque st for expedited dece rtification, Cry stal Clear

asser ted t hat i t in fac t had “significa nt phy sical fa ci l i t i es” located on the Decer tified Property and also had facilities located near that p ro p er t y that wer e “committed or used by Cry stal Clear in the perf ormanc e of its duties and obliga tions as a reta il public utilit y ” to serve the Dec ertified Property

. I n support of this contention, Cry stal Clear proff ere d evidenc e to the Commi ssion, in cl u d i n g t he aff idavit of Eric Schulze, a profe ssional eng ineer

. The contents of that aff idavit can be summarized 6 as follows:

Faciliti es : Schulze’s aff idavit proves up an attachme nt labeled “Exhibi t 1,” which is a map p repa

red by him on Dec ember 6, 2011. The map depicts a plant labeled “Kue nstler Plant” and something identified as a “Standpipe” on the port i o n of the Ex cluded Property adjoining the southern border of the Dec ertified Prope rty . Acc ording to this m ap, a 3" water line runs along the wester n edg e of two of th e p ar ce ls making up a portion of the Dec ertified Property on the east side of I H-35. L ocate d on that water line is something marke d with the letter “Y” and descr ibed i n t h e map’s leg end as “I nactive Connection by GLO.” I t also appea rs from the m ap that an unidentified 4" water line enter s the north piece of the portion of the Dec ertified Property that is located on the w est side of I H-35.
Water Suppl

y : Schulze al s o aver

red that Cry stal Clear had secur ed water rig hts committed to serve the Dec ertified Property , ref err ing to an attachme nt that “identifies the w ater

rig hts Cry stal Clear ha s secur ed.”

We note that in the administrat i v e rec ord as admitted in the trial court, Cry stal Clear’ s 6 re s p o n s e to the GL O’s petition for expedited rele ase does not have any attachme nts and does n o t include the ref

ere nced Schulze aff

idavit. Cry stal Clear’ s motion to overturn the Commi ssion’s order on the petition doe s include a copy of an a ffidavit of Er ic Schulze, which we ha ve pre sumed to be the one ref

err ed to in Cry stal Clear’ s response . This is the only aff idavit of Eric Schulze appea ring in the administrative re cord. 12I n revie wing the attachme nt to the Schulze aff idavit, it is not appar ent whether the water rig hts ref err ed to are rig hts Cry stal Clear had secur ed for its entire certificated area or whether the ref ere nced water rig hts wer e dedica ted to or rese rved to serve anticipated future development on the
Dec ertified Property

. Moreove r, while the attachme nt appea rs to show that the secur ed water supply
meets Cry stal Clear’ s “proje cted water demand,” there is nothing to show that that projec ted demand includes dema

nd anticipated f

rom proposed de velopment of the D ece rtified Proper ty

. Cry stal Clear als o i n formed the Commi ssion that the GL O is a “ver y substantial” landowner along the I H-35 corr idor and repr esente d that Cry stal Clear had secur ed a “diver se, longt er m s u pply of water for its [certifica ted are a] in the high- g rowth are a of I H-35” and had done so both by purcha sing water rig hts and by enter ing into long- term contra cts for water supply

. I n support of this contention, Cry stal Clear attache d the aff idavit of Michae l Four

nier, an ad m i n i strator for Cry stal Clear. The c ontents of his aff idavit can be summarized as follows: 7

Water Suppl

y : Four nier aver red that Cry stal Clear had “purc hased and made long- term contra ctual commitments to provide water supply to its [certifica ted are a],” had a twenty -y ear supply of water , and had secur ed water rig hts “we ll in excess of the Commi s s i on’s minimum require ments.” As evidentiar y support for this statement, Four nier ref err ed to the attachme nt to Schulze’s aff

idavit and to the fac t that Cry stal Clear had been cer tified as an approve d water supplier in Comal County , wher e the Dec ertified Property was located. Four

nier stated in his aff

i davit that, to achie ve such cer tification, C ry stal Clear had to satisfy Comal County ’s require ment that it demonstrate it had owners h i p of—or a firm contra ctual commitment

Agai n , Four

nier’s aff idavit was not attache d to Cry stal Clear’ s response in the 7 administrative rec ord as admitted in the trial court. C ry s t al Clear’ s motion to overturn the Commi ssion’s order on the petition does include a copy of an aff idavit of Michae l Four

nier, which we h av e presumed to be the one refer red to in Cry stal Clear’ s response . This is the onl y aff idavit of Michae l Fournie r appe aring in the administrative re cord. 13for—tw en ty y ear s’ available water supply for projec ted demand in the utilit y ’s servic e ar ea.
Although he does not so state, it appea rs that Four

nier was ref

err ing to the fac t that the Comal County Commi ssioner’s Court had approve d Cry stal Clear’ s “Wat er Av ailability Report.” That
repor t a ddresse d Cry stal Clear’ s ability to pr ovide water to meet anticipated general demand in its

cer tificated are a. The minutes of the Comal Coun t y C o m m i ssioner’s Court meeting in which it considere d the Water Availability Report indicate that there was a discussion at the meeting
reg arding whether the repor t i n cl u d ed the projec ted demand for water arising out of the GL O’s proposed plan of development of its proper ty in Comal County , including the Dec ertified Property , that it had previously provided to Cry stal Clear. Paul T err ill, a Cry stal Clear repr esenta tive, stated
to the Commi ssioner’s Court that the Water Availability Report did not include the GL O’s projec ted demand f or wa ter be cause (1) that information was pr ovided to Cry stal Clear a fter it had pr epar ed its repor t, (2) the GL O had not submitt ed an app l i ca tion for water service for the Dec ertified Property , and (3) the demand the GL O had pr ojected w as excessive.

The GL O co untere d Cry stal Clear’ s evidenc e by prese nting the aff idavit of Clint
W alker, a profe ssional eng ineer , who aver red that he had rea d Cry stal Clear’ s Water Availa b i l i t y Report and that it did not include “any water supply or fac iliti es to serve the Dec ertified Property .” Wit h respe ct to the water rig hts ref err ed to in Schulze’s aff

idavit, Walker stated that the Dec ertified Property , when develope d, would need 3,024 acr e-f eet of water per y ear , y et Cry stal Clear’ s total

curr ent supply is only 3,554 acr e-f eet per y ear for its entire cer tificated are a. Significa

ntly , Walker

14aver

red that 1,823 acr e-f

eet per y ear of Cry stal Clear’ s “wa ter curr ent s u p p l y i s co m m itted to its exis ting c ustomers.”

On appea l, the Commi ssion and the GL O contend that Cry stal Clear’ s admission that it was not then delivering any water to the Decer tified Property ends t he inqui ry into whether that
proper ty is “re ceiving water service .” I n their view, a trac t of land is not rec eiving water service “if the lan d o wn er is not rec eiving actua l water on the proper ty .” We find nothing in the text of the statute, howeve r, that compels this interpr etation. The Commi ssion a nd the GL O express conce rn that if “re ceiving water service ” does not mean actua l prese nt delivery of water to a trac t, expedited rele ase pursuant to section 13.254(a- 5) would not be available if the reta il public utilit y had place d
any ty pe of fac iliti es or lines any wher e near the trac t seeking dece rtification, even if those lines wer e providing water to thi rd p ar t i es an d never delivere d water to the trac t at issue. We think these

conce rns are ex ag g era ted. The mere ex istence of water lines or facilities on or n ea r a trac t would
not nece ssarily mean that trac t was “re ceiving water service .” Rather, as discussed previously , such

a deter mination is essentially a fac t-based inquiry requiring the Commi ssion to consider whether the
reta il public utilit y has fac iliti es or lines committed to providing water to the particular tract or has perf ormed acts or supplied any thing to the particular tract in further ance of its obliga tion to provide
water to that trac t pursuant to its CCN. As noted above, the term “ser vice” as define d in chapte r 13 is very broad and appea

rs intentionally so. I t includes fac iliti es and lines as well as acts perf ormed and any thing furnished or supplied. But its brea dth i s also constraine d by limit ations in the definition itself, as well as in Water Code section 13.254(a- 5). The definition of “ser vice” includes the condition that the fac iliti es or lines be “committed or used” in the perf ormanc e of Cry stal Clear’ s

15dutie s as a reta il public utilit y . Tex. Water Code § 13.002(21). The acts perf ormed and things furnished or supplied must also be in further ance of perf orming those duties. Id. And it is essential that any qualify ing service s are being “re ceive d” by the proper ty for which expedited dece rtification is soug ht befor e s u ch proper ty is rende red ineligible for dece rtification pursuant to section 13.254(a- 5). Id. § 13.254(a- 5). A trac t of land is not nece ssarily “re ceiving ” water service simply beca use t here are fac iliti es or water lines near , or even on that trac t if, for ex ample, such fac iliti es

are used to provide water only to other trac ts. Rather, it is important to co nsider whether the fac iliti es and lines are “committed” to the trac t seeking expedited rele ase or “used” to provide water
to that trac t. Certainly an active water tap on the Dec ertified Property would constitute a fac ility or line “used” to supply water to the t ra ct on which it was located. But it might also be sufficie nt if there wer e fac iliti es or lines “committed” t o such service , such as a dedica ted water line that had been installed to serve that proper ty even i f s uch li ne were not curr ently opera tive. Conversely , a
trac t of land would not nece ssarily be “re ceiving ” water service simply beca use the reta il pubic utilit y has perf ormed an act, such as enter ing into a contra ct t o s ecur e water supply , unless the act was perf ormed in fur

thera nce of providing water to the trac t se eking dece rtification. The Commi ssion

an d t he GL O arg ue that apply ing section 13.002(21)’ s broad definition of “ser vice” to the p h ra s e “re ceiving water service ” in section 13.254(a- 5) would evisce rate the statute’s purpose of providing

a streamlined dece rtification proce ss for cer tain trac ts of land and wo u l d rende r it impossibl e to obtain expedited dece rtification if the reta il public utilit y has place d fac iliti es or lines near the trac t,

even if they are serving only third parties. The require ment that the fac iliti es and lines are used for

or committed to a particula r trac t befor e that trac t is deeme d to be “re ceiving ” service s ameliora tes

16this concern. All of these considerations are matters committed to the Commi ssion’s sound

discretion and a

uthority to decide issues of

fac t. The parties ag ree t h at Cry stal Clear was not actively supply ing water to the
Dec ertified Property when the Commi ssion i s s u ed i t s dece rtification order

. There fore , the issue befor e the Commi ssion was whether the Dec ertified Property was “ re ce i v i ng water service ” from Cry stal Clear in some manner other than by prese nt delivery of water to that p ro p erty

. The Commi ssion impliedly found that there wer e no fac iliti es or lines commi t ted to serving the
Decer t i fi ed P roperty and/or that the water supply dedica ted to meeting future demand by the
Dec ertified Property was not suf ficient for it to be deeme d to be “re ceiving water service .” I n this

s u it for judicial revie w, we consider whether the evidenc e prese nted in the dece rtification proce edin g provided rea sonable fac tual support for the Commi ssion’s deter mination that Cry stal Clear has not perf ormed acts in further ance of providing water to the Dec ertified Property , and does not have fac iliti es and lines committed to that purpose, sufficie nt for it to be found to be “re ceiving water service .” See Size more , 759 S.W .2d at 116.

Cry stal Clear arg ues on appea l that there was evidenc e, prese nted as Ex hibit H to its
response to the dece rtification peti t i o n , t h at Cry stal Clear has water lines, water plants, and other fac iliti es located on the Dec ertified Property

. Ex hibit H, howeve r, is simply a map that was attache d
to Cry stal Clear’ s respons e t o the GL O’s petiti on for decer tification. The map was not supported

or proved up by any aff

idavit and does not bear the stamp of a licensed profe ssional eng ineer

. I t was included in t h e re sponse t o support the uncontroversial proposit ion that the GL O’s property , both the Dec ertified Property and the Ex cluded Property , is l o ca t ed in the hear t of Cry stal Clear’ s

17cer

ti fi ca t ed area. Ex hibit H differ s in materia l way s from the map of the same are a attache d to Schulze’s aff

idavit that does bear his stamp as a licensed profe ssional eng ineer (the “Schulze Map”)

. For example, the Schulze Map s h o ws the “Kue nstler Plant” and the “Standpipe” as located on
proper ty adjacent to the Dec ertified Property , wher eas Ex hibit H ap p ea rs to show that these two plants are located on the Dec ertified Property

. Cry stal Clear arg ues on appea l that Ex hibit H reve als the exis tence of a water connec tion located on the Dec ertified Property that was “dea ctivated upon
reque st”—imply ing, though not actua lly repr esenting , that the GL O was the reque stor. On Ex hibit
H is a spot marke d “Y,” which is located on the 3" water line that runs along the wester n boundary of the portion of the Dec ertified Property east of I H-35. Ex hibit H’s l ege n d i n d i cates that “Y”
repr esents a “Surre ndere d Connection by GL O.” The Schulze Map’s leg end indicates, howeve r, that
“Y” repr esents an “I n ac t i v e C onnection by GL O.” There was no further evidenc e prese nted
reg arding what “Y” depicts, nor what “I nactive Connection by GL O” means. We can infer only that
“Y” corr esponds to what the GL O ref err ed to as an “empty meter box ” located on the 3" water line.
We co n c lu d e th a

t th e Co mm ission could rea sonably have declined to attribute any evidentiar y weig ht
to Ex hibit H, any signific ance to the spot marke d “Y,” or any particula r meaning to the descr iptors of that spot included in the two maps’ le g ends.

Cry stal Clear also contends that there was evidenc e that it has water rig hts and water

supply contra cts committed and used to “ser ve the are a that includes” the Dec ertified Property

. But

as detailed above, t h ere was at least conflicting evidenc e reg arding whether the water supply
contra cts wer e secur ed in order to provide water to the Dec ertified Property , and Cry stal Clear’ s own
repr esenta tive stated to th e C o m al C o u nty Commi ssioner’s Court that the demand fig ures in its

18Water Availability Report did not ref lect the projec ted demand for water resulting from the GL O’s proposed de velopment of the D ece rtified Proper ty

. We concl u d e th a

t th e e v id e n c e p r e s e n te d to th e Commi ssion reg arding Cry stal Clear’ s then-e x isting fac il i t i es and lines and water supply contra cts provided a rea sonable basis for the Commi ssion’s finding that the Dec ertified Property was not “re ceiving water service .” Substantial evidenc e supports the Commi ssion’s finding that Cry stal Clear had not perf ormed any act, furnished

or supplied any thing, or committed or used any fac iliti es or lines to the Dec er tified Property

. Be cause there was substantial evidenc e to support the Com m i s s i o n ’s finding that the Dec ertified Property was not rec eiving water service , the three criter ia for expedited dece rtification pursuant to 13.254(a- 5) were met. We there fore hold that the t rial court err ed in reve rsi n g t h e C ommissi on’s order approving the GL O’s dec ertifica tion petition.
Appeal from District Cou rt’s Order Granting t he Plea to the Juris diction
I n addition to its su it for judicial revie w of the Commi ssion’s order , Cry stal Clear

asser ted claims for declar atory judgme nt under both the UDJ A and the AP A. See Tex. Civ. P rac . & Rem. Code § 37 .004; Tex. Gov’t Code § 2001.038. The Commi ssion filed a plea to the jurisdiction asser

ting that the district court lacke d subject-matter jurisdiction over Cry stal Clear’ s
reque sts f or decla ratory relief beca

use (1) decla

ratory judgme nt was not available to resolve issues alre ady pending befor e the court a nd (2) sove reig n immunit y barr ed the c laims. The district court
g rante d the plea to the jurisdiction. I n its cross-a ppeal, Cry stal Clear bring s a single issue asser ting

19that the trial court err ed by g ranting the Commi ssion’s plea t o the jurisdiction and dismiss ing its

claims for de clar atory

relief broug ht pursuant to the UDJA. 8
A plea to the jurisdictio n ch al l en g es a trial court’s authority to decide a case . See
Texas Dep’ t of

Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 225-26 (Tex. 2004). The plaintiff has the initial burden of alleg ing fac ts that aff irmatively demonstrate the trial court’s jurisdiction to hear the case . Id

. (citing Texas Ass’n of Bus. v. Texas Air Control Bd. , 852 S.W .2d 440, 44 6 (Tex. 1993)). Whether

the plaintiff met this burden is a que stion of law that we r eview de novo. Id.
To establish a trial court’s subject-matter jurisdiction over a reque st f or decla ratory relief under the UDJA, a party must plea d the exist ence of an “ underly ing c ontroversy ” within the
scope of section 37.004 of the Civil Practice and Remed i es Code. Strayhorn v. Raytheon E-Sys.,
Inc. , 101 S.W .3d 558, 572 (Tex. App.—Austin 2003, pet. denied)

. The power of courts to issue decla ratory judgme nts under the UDJA in the fac e of administrative proce eding s is limit ed. Beac on Nat’l Ins. Co. v. Montemay or , 86 S.W .3d 260, 26 7 (Tex

. App.—Austin 2002, no pet.). When a
statute provides an avenue for attacking a final ag ency order , a decla ratory -judg ment action direc ted
at t hat order wil l not lie. Id. ; Y oung Chevrolet, Inc . v. Texas M otor Vehicle Bd. , 974 S.W .2d 906, 911 (Tex. App.—Austin 1998, pet. denied). This is so beca use a party is g ener ally not entitled to redunda nt remedie s. See Young C hevrole t , 974 S.W .2d at 911. Cry stal Clear soug ht the following decla rations rela ted to expedited rele ase pursuant to section 13.254(a- 5):

Cry stal Clear does not challeng e the district court’s dismiss al of its reque st for decla ratory 8 relief pursuant to sec tion 2001.038 of the APA. 20• I f a utilit y has “facili t i es ,” as define d in 30 Tex. Admin. Code § 291.3(17), committed or used in connec tion with proper ty , it provides “ser

vice” to that proper ty , as def ined by 30 Tex. Admin. C ode § 291.3(43)

.

• “Servic e” as used in Tex. Water Code § 13.254(a- 5) means “ser vice” as define d in Tex. W ater

Code § 13.002(21).

• [The Commi ssi o n ], acting by and throug h its Ex ecutive Direc tor and Commi ssione rs, is bound by its formal interpre tations of the Texas Water Code, and [t he Commi ssion’s] Ex ecutive Di rec tor and Commi ssioners commit an ultra vires act that co n t ra venes both the Texas Water Code and [t he C o m m ission’s own] interpre tation of t he Tex as W ater Code by failing to apply the definition of “s ervic e” in Texas Water Code § 13.002(21) to a petition f or expedited relea se under 30 Tex. Admin. C ode § 291.113(r ) and Texas Water Code § 13.254(a -5).

• [The Commi ssion] , ac t ing by and throug h its Ex ecutive Direc tor and Commi ssioners, exceeds its st at u t o ry authority and acts without leg al authority when it g rants a petition for expedited rele ase under Tex. W ater Cod e § 13.254(a- 5) for a portion of a trac t of land held under unity of owner ship that was car

ved out and selec tively included by the owner in a petition for expedited rele as e, wher e the owner of the trac t of land is rec eiving “ser

vice” as def

ined in Tex. W ater

Code § 13.002(21).

These decla

ratory claims repe at the same statutory -constru ction arg uments Cry stal Clear made to the Commi ssion a

nd to the district c ourt in its sui t for judicial re view. An a vailable reme dy in its suit for judicial r eview w as the reve rsal of the Commi ssion’s or der if it was “in excess of the a g ency ’s statutory authority ” or “af

fec ted by other error of law.” APA § 2001.174. Thus, the district court was authorized to reve rse the Commi ssion’s order if it conclude d that the age ncy ei t h er exceede d its statutory authority or misconstrued a pe rtinent statute. I ndeed, the district c ourt did r ever se the Co mm is s ion’s order

. The decla rations Cry stal Clear soug ht would have provided no additio n a l r e li e f and wer e, there fore , redunda nt of its suit for judicial revie w. Acc ording ly , the district court did not

21err in dismiss ing these claims for decla ratory relief for lack of subject-matter jurisdiction pur suant
to the redunda

nt-reme dies doctrine. See SW EPI LP v. Railroad Comm’n , 314 S.W .3d 253, 269 (Tex. App.—Austin 2010, pet. denied)

.

Cry stal Clear arg ues on appea l that the district court’s decision reg arding the merits of its suit for judicial revie w would not nece ssarily have, and did not, provide it with “any clar ity as
to key aspec ts of the interpre tation and applicati o n of” Water Code section 13.254(a- 5). We understand Cry stal Clear’ s arg ument to be that the decla ratory relief it soug ht was broade r than the relief it could obtain throug h resolution of its suit for judicial revie w and there fore was a permitted

re q uest to deter

mine the proper construction of a statute that aff ects its business activities and to obtain a decla

ration of its rig hts , s t at u s , and leg al obliga tions with respe ct to its duty to provide “continuous and adequate service ” to the rema inder of its cer tificated are a. But t h e decla rations Cry stal Clear soug ht would not have provided it with any further clar ity reg arding the interpre tation

or application of section 13.254(a- 5) in future dece rtification proce eding s. As discussed previously , the deter mination of whether a particula r proper ty is “re ceiving water service ” is a fac t question or

a mix ed question of law and fac t to be deter mined by the Commi ssion based on the evidenc e befor e it. To the extent Cry stal Clear soug h t a gener ic decla ration of what would constitute sufficie nt fac iliti es and lines “committed” to a trac t to defe at a reque st f or expedited dece rtification pursuant
to se ction 13.254(a- 5), any such decla ration would have be en pure ly advisory

. See Texas Ass’n of
Bus. , 852 S.W .2d at 4 4 4 (separation-of -powe rs doctrine prohibits courts from issuing advisory opinions). There fore , the trial court did not err in dismiss ing Cry stal Clear’ s reque st for decla ratory relief reg arding the conditions nece ssary for e x pedited re lease pursuant to sec tion 13.254(a-5)

.

22Finally , Cry stal Clear also soug ht decla rations that the United States and Texas Constit utions require the Commi ssion to aff ord the holder of a CCN due proce ss and due course of law and that the Commi ssion’s order gra n t ing the petition to dece rtify part of Cry stal Clear’ s

cer tificated service are a without an evidentiar y hear ing deprive d it of those due-pr ocess rig hts. See U.S. Const. amend. V, XI V; Tex. Const. art. I , § 19. The Commi ssion arg ued that these reque sts for decla ra tions wer e barred by sovere ign immuni ty , and the district court dism issed them for lack of subject-matter jurisdiction. Citi ng City of El Paso v. Heinrich , Cry stal Clear arg ues on appea l that

a l egis lative waiver ex ists that permits decla ratory claims reg arding its constitutional due-pr oce s s rig hts. See 284 S.W .3d 366, 372 (Tex. 2009) (“[S] uits to require sta t e o fficials to comply with statutory or constitutional provisions are not prohibited by sovere ign immunit y , even if a decla ration
to the eff ect compels the pay

ment of money .”). Cry stal Clear al s o co n t ends that its decla ratory claims that soug ht to r equire state officia ls to comply with constitutional provisions fall within the ultra v ires exception to sovere ign immunit y . See, e.g. , Texas Natural Res. Conservation Comm ’n

v. IT-Davy , 74 S.W .3d 849, 855 (Tex. 2002) (“Private parties may seek decla ratory relief ag ainst state off icials who alleg edly act without leg al or statutory authority .”). Thus, Cry stal Clear a rg ues that the district court had subject- m at t er jurisdiction over its reque st for a decla ration that its due-pr ocess rig hts wer e violated when the Commi ssio n d ec er t ified part of its cer tificated are a without providing a

n evidentiar

y hear ing. The linchpin of Cry stal Clear’ s arg ument is the exis tence of a vested proper ty interest entitled to due -proc ess and due-c ourse- of-law protec tion. We look to Cry stal Clear’ s pleading s to deter mine whether it has pleade d the exis tence of such an interest. See Miranda , 133 S.W .3d at 226.

23Cry stal Clear’ s petition identifies the qualify ing proper ty i n t er est as “tang ible proper ty , such as fac iliti es, located on” the Dec ertified Property and “the exclusive rig ht and responsibility to provide
water within define d g eog raphic bound ar i es” as provided by its CCN. As an initial matter, the dece rtification order had no eff ect on Cry stal Clear’ s title to any of its proper ty or fac iliti es, whether located on the Dec ertified Property or elsewhe re. I n any event, the Water Code provides that there be compensa tion for any proper ty that the Commi ssion deter mines is rende red useless or valueless to

a dece rtified reta il public utilit y as a result of dece rtification. See Tex. Water Code § 13.254(d)- (g ).
Moreove r, it is undispute d that Cry stal Clear was not g ener ating any ty pe of reve nue stream as a result of the inclusion of the Dec ertified Property in its cer tificate d ar ea . The eff

ect of the Commi ssion’s order was simply to remove the Dec ertified Property from Cry stal Clear’ s cer tificated

are a, mea ning tha t Cry stal Clear no long er had a rig ht to be the exclusive provider of w ater to that
p ro p er t y . But this Court has previously held that a CCN, which confe rs the exclusive rig ht t o

serve a desig nated are a, is not a vested proper ty righ t en titled to due-pr ocess protec tion. See Creedmoor-M

aha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 525-26 (Tex. App.—Austin 2010, no pet.).

We there fore conclude that Cry stal Clear did not plead the exis tence of a vested
proper ty interest that could form the basis of a reque st for a decla ration that the Commi ssion’s order violated its rig hts to due proce ss or due course of law under the United States or Texas Constit utions. Thus, the district court did not err in dismiss ing Cry stal Clear’ s decla ratory claims to that eff

ect for lack of subject-matter jurisdiction. Acc ording ly , we overr ule Cry stal Cl ea r’s sole issue in its

cross-a ppeal.

24CONCLUSION Having conclude d that substantial evidenc e supports the Commi ssion’s finding that the Dec ertified Property met the criter ia for expedited rele ase pursuant to Water Code section 13.254(a- 5), we reve rse the portion of the district court’s judgme nt that reve rsed the Commi ssion’s order approving the GL O’s petition for expedited rele ase, and we re n d er j udg ment aff irming the Commi ssion’s order

. We aff irm the portion of the district court’s order t h at g rante d the Commi ssion’s plea to the jurisdiction as to Cry stal Clear’s c laims for dec lara tory relief

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med in Part, Rever sed and Rende red in Part Filed: Aug ust 22, 2014

25