Opinion filed January 31, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00033-CV

__________

GALILEE PARTNERS, L.P., Appellant

V.

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, 

Appellee

On Appeal from the 98th District Court

Travis County, Texas

Trial Court Cause No. D-1-GN-09-002265

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

The Texas Commission on Environmental Quality (Commission) denied 

Galilee Partners, L.P.’s application for the creation of a water control and 

improvement district. On appeal, the district court affirmed the Commission’s 

order, and this appeal followed. We affirm.

Galilee sought the Commission’s approval of a plan to create the Maypearl 

Water Control and Improvement District No. 1 (District). Galilee filed its 
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application with the Commission in April 2005. The proposed purpose of the 

District was to furnish water as well as to provide for wastewater, drainage, and 

storm water control facilities to approximately 226 acres in Ellis County between 

Interstate 35 West and Interstate 35 East. According to the record, the land is 

located south of Midlothian (the evidence places the distance between the land and 

Midlothian at anywhere from eight to ten miles), northwest of Maypearl, and some 

five to six miles from Venus. Although rural, the property is located near a 

proposed highway construction project that was designed to connect the area with 

State Highway 360, a highway that runs to and from the DFW airport.

The waterworks improvements contemplated by the proposed application 

were to be constructed by the developer, and the District would ultimately 

reimburse the developer out of bond sales. The facilities were to be owned and 

operated by the District. Ultimately, the financing of the improvements were to be 

paid by the issuance of bonds that would be retired through the taxing power of the 

District.

The final plans called for 150 acres that were to be subdivided into 798 

small “workforce [residential] housing” sites. Out of what remained of the 226 

acres, the final plans were for ten acres to be set aside for a school site, thirteen

acres for commercial development, and the remaining fifty-three acres for a flood 

plain, open spaces, and utility easements.

The concept for the development itself according to the original plan was to 

provide affordable workforce housing for the growing Dallas-Fort Worth metroplex area. In order to achieve that result, approximately one-half of the lots were 

about 4,000 square feet, and the other lots were some 5,000 square feet in size. 

One of the intended effects of the small lot concept was to avoid higher building 

costs resulting from larger lot sizes necessitated by various zoning and planning 
3

requirements in other areas and thereby make the properties in this development 

more affordable.

The Ellis Prairie Soil and Water Conservation District filed a protest to the 

application as did Ellis County. The case made its way to the State Office of 

Administrative Hearings for a contested case hearing. The Administrative Law 

Judge (ALJ) assigned to the case conducted that hearing. After the record closed, 

the ALJ issued her “PROPOSAL FOR DECISION.” The ALJ recommended that 

the Commission deny the application. Ultimately, by a vote of two to one, the 

Commission denied the application. Galilee appealed the denial to the district 

court. The district court affirmed the Commission’s order.

Galilee presents us with five issues on appeal. Issues I, II, and III are 

basically grounded on the same premise: the Commission has no authority to deny 

an application for a water improvement district based on a finding that a proposed 

district is not immediately financially feasible or that the property covered by the 

proposed district is not marketable as proposed. According to Galilee, such 

newfound authority as applied in this case had never been used by the Commission 

before except as a bright-line rule in the early stages of the Commission’s 

consideration of an application and would grant to the Commission the ability to 

control location, size, and contested marketability of proposed developments. On 

the other hand, the Commission argues that this rule is not a new one and is 

specifically authorized. As far as we can tell, the question before us is unique and 

is a case of first impression. A resolution of this inquiry will provide the resolution 

to the first three issues on appeal. After we resolve that inquiry, we will take up 

the remaining two issues.

The authority granted to the Commission, insofar as this appeal is 

concerned, is first found in the Texas Constitution, article XVI, section 59. TEX.
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CONST. art. XVI, § 59. Pursuant to that authority, the legislature made provision 

for the filing of a petition/application for the creation of a water control 

improvement district:

 § 51.014. Contents of Petition

The petition shall include: 

(1) the name of the district; 

(2) the area and boundaries of the district; 

(3) the provision of the Texas Constitution under which 

the district is to be organized; 

(4) the purpose or purposes of the district; 

(5) a statement of the general nature of the work to be 

done and the necessity and feasibility of the project, with 

reasonable detail and definiteness to assist the court or 

commission passing on the petition in understanding the 

purpose, utility, feasibility, and need; and 

(6) a statement of the estimated cost of the project based 

on the information available to the person filing the petition at 

the time of filing.

TEX. WATER CODE ANN. § 51.014 (West 2008). The Texas Administrative Code

also sets forth requirements for an application such as the one involved in this 

appeal. One such requirement is that the application must contain, if substantial 

development is proposed, a market study and a developer’s financial statement. 30 

TEX. ADMIN. CODE § 293.11(a)(6) (Tex. Comm’n on Envtl. Quality, Information 

Required to Accompany Applications for Creation of Districts).
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If a contested case hearing is conducted, as in this case, after the hearing:

(a) The commissioners court or the commission shall grant the 

petition requesting the creation of a district if it appears at the hearing 

that:

(1) organization of the district as requested is 

feasible and practicable;

(2) the land to be included and the residents of the 

proposed district will be benefited by the creation of the

district;

(3) there is a public necessity or need for the 

district; and

(4) the creation of the district would further the 

public welfare.

(b) If the commissioners court or the commission fails to make 

the findings required by Subsection (a) of this section, it shall refuse 

to grant the petition. 

(c) If the commissioners court or the commission finds that any 

of the land sought to be included in the proposed district will not be 

benefited by inclusion in the district, it may exclude those lands not to 

be benefited and shall redefine the boundaries of the proposed district 

to include only the land that will receive benefits from the district.

TEX. WATER CODE ANN. § 51.021 (West 2008).

When we construe these statutory provisions, we ascertain and give effect to 

the intent of the legislature as expressed in the statutes. In re A.A.G., 303 S.W.3d 

739, 740 (Tex. App.—Waco 2009, no pet.). We will presume that every word of 

the statutes has a purpose. Id. A governmental agency’s construction of a statute 

that it is charged to carry out or to enforce is afforded due consideration if the 

construction is a reasonable one. R.R. Comm’n of Tex. v. Tex. Citizens for a Safe 
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Future & Clean Water, 336 S.W.3d 619, 625 (Tex. 2011). If the agency’s 

construction of the statute is a reasonable one and in accord with the plain 

language of the statutes, then it is entitled to judicial deference. Id. at 628. 

As we have said, the ALJ heard this case and proposed that the Commission 

deny the application. Although the executive director of the Commission had 

originally recommended that the Commission approve the District, by the time of 

the hearing, he had withdrawn that recommendation and recommended that the 

application be denied. The executive director based his change in recommendation 

upon the collapse of the subprime mortgage industry and the concomitant housing 

bust that occurred after Galilee filed its application but before the hearing. All 

parties agree that the collapse and bust did occur at that time.

The Commission ultimately denied the application by a vote of two to one. 

The Commission issued its findings of fact and conclusions of law. Among many 

other things, it found (1) that Galilee had failed to meet its burden to prove that 

there was a need for the District and (2) that the District was not economically 

feasible “because [Galilee] did not establish that there is a need for the proposed 

development.” The Commission reasoned that, “[w]ithout the need for the 

proposed development, there is no need for utility services, no need for a 

governing body, and no need for the District.”

As we apply the applicable constitutional and statutory provisions to this 

case, we believe that it is important for us to note what the Commission did and did 

not find and conclude as compared to the argument advanced by Galilee. In its 

first issue, Galilee claims that it was error to erroneously equate the organizational 

feasibility of and need for the District with the perceived immediate financial 

feasibility and marketability of the development. Galilee argues that the Commission’s decision was based upon the collapsed real estate market that prevailed 
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at the time of the hearing. Galilee argues that a district’s organizational feasibility 

and need should not be equated with the immediate real estate market feasibility or 

necessity for the proposed housing development.

We take Galilee’s position to be that the market feasibility and need for the 

real estate development is an issue separate and apart from that of the feasibility 

and need for the District itself. In its brief, Galilee argues that for the Commission 

to base its decision upon the former would be for the Commission to exceed the 

bounds of its statutory authority, to violate rules of statutory construction, and to 

retroactively apply a new ad hoc standard to the application process. Galilee 

assails the Commission for denying the application based upon the assumed fact 

that “the proposed real estate development was not shown to be immediately financially viable or needed.”

We disagree that the Commission found that the “proposed real estate 

development was not shown to be immediately financially viable”; we do not 

believe that to be an accurate statement of what the Commission actually did. 

Whether the development was “immediately financially viable” was not a stated 

consideration of the Commission. The Commission concluded that “the proposed 

District,” not the proposed development, “is not economically feasible in 

accordance with § 51.021(a)(1) of the Water Code.” The Commission further 

concluded that “there is not a public necessity or need for the proposed District as 

required by § 51.021(a)(3) of the Water Code.” The Commission made its finding 

clear: “Without the need for the proposed development, there is no need for utility 

services, no need for a governing body, and no need for the District.”

With the possible exception of two witnesses for Galilee—both home 

builders—no witness, even those presented by Galilee, said that there was a current 

market for housing in the proposed development. One of those two witnesses was 
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an investor in Galilee. The proof was divergent on just when, if ever, there would 

be a market for housing within the proposed development. We are to concern 

ourselves with the reasonableness of the administrative order, not the correctness 

of the order, and we may not substitute our judgment as to the weight of the 

evidence for that of the Commission. City of El Paso v. Pub. Util. Comm’n of 

Tex., 883 S.W.2d 179, 185 (Tex. 1994). 

Galilee argues that the Commission has never taken such action as this 

before it denied the application in this case. Whether that be the case or not, we 

believe that the statutes not only authorize the Commission to determine whether 

there is a public necessity or need for a district, but also require it to make such a 

determination. Otherwise, we fail to see why the statutes would require (1) that the 

application include “a statement of the general nature of the work to be done and 

the necessity and feasibility of the project, with reasonable detail and definiteness 

to assist the court or commission passing on the petition in understanding the

purpose, utility, feasibility, and need” for the project; and (2) that the application 

include a market study and a developer’s financial statement. See WATER

§ 51.014; 30 ADMIN. § 293.11(a)(6).

The Commission did not determine whether the development would be a 

moneymaker—a financially sound investment—but it did determine that there was 

no need for it based upon testimony from all parties showing that, by the time of 

the hearing, the subprime mortgage crisis and the housing bust had hit the area and 

there was no market for the property in the proposed development. Again, to 

paraphrase the Commission, because there was no market for the property 

contemplated by the development, there was no need for utility services and,

therefore, no need for a governing body and, therefore, no need for the District.
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Assuming that the findings of the Commission were supported by substantial 

evidence, we hold that the trial court did not err when it affirmed the 

Commission’s denial of the application based upon its belief that “the proposed 

District is not economically feasible in accordance with § 51.021(a)(1) of the 

Water Code”; that “there is not a public necessity or need for the proposed District 

as required by § 51.021(a)(3) of the Water Code”; and that, “[w]ithout the need for 

the proposed development, there is no need for utility services, no need for a 

governing body, and no need for the District.” Galilee’s Issues I, II, and III are 

overruled.

In its Issue IV, Galilee argues:

The Trial Court erred in affirming the TCEQ’s reliance upon 

non-probative, unqualified, speculative and improperly admitted 

opinion evidence as to the financial feasibility of and need for the 

workforce housing development to be served by the proposed district 

and the testimony of the County and Soil and Water Conservation 

District whose[] expert witnesses were not even disclosed until after 

the deadline established for both disclosure and the taking of 

depositions in violation of both the Texas Rules of Evidence and 

Rules of Civil Procedure. The allowance of such testimony over 

Applicant’s objections renders the Order unsupported by substantial 

evidence and made under unlawful procedure.

We frame what we perceive to be contained within Galilee’s Issue IV to 

encompass assertions that the evidence upon which the Commission relied was 

non-probative, given by unqualified witnesses, speculative, and improperly 

admitted. Galilee further asserts that the Commission should not have relied, and 

the district court should not have affirmed that reliance, upon the testimony of 

expert witnesses called by Ellis County and by Ellis Prairie Soil and Water 

Conservation District who were not disclosed until after the deadline previously 

established for disclosure and depositions.
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The Commission argues that Galilee has failed to adequately brief Issue IV 

and has therefore waived the objections. We agree. In its brief, Galilee stated that 

it “consistently objected to the presentation of evidence by the County and the Soil 

and Water Conservation District and the reversal of testimony of the Commission’s 

Staff witness presented at the evidentiary hearing as unsupportable under the 

reliability requirements for expert testimony.” Galilee then stated that “[t]hese 

objections are set forth in the record in both written and verbal form.” Galilee 

inserted a footnote here, in which it stated: “RR Vol. 7, Applicant’s Objections to 

Ellis County Witness’s Pre-filed Testimony; Applicant’s Objections to EPSWCD 

pre-filed Testimony; and Applicant’s Objections to the Testimony of Executive 

Director Witness Prabin Basnet.” Galilee then “incorporates herein by reference 

all of its record objections to the testimony of the other parties and to the 

presentations of party witnesses not even designated prior to the disclosure and 

deposition deadlines imposed by SOAH in this proceeding,” and it refers to the 

above-quoted footnote again.

When we examine the record to which Galilee sends us, we find well over 

100 objections that Galilee lodged to the testimony of various witnesses. We do 

not feel constrained to search through those objections to find which of them are 

the subject of Galilee’s complaints in this appeal. We also do not feel constrained 

to find those objections and then to evaluate each unspecified objection and then to

determine not only how such ruling was incorrect but also how the ruling was 

made arbitrarily or unreasonably and thus constituted an abuse of discretion. See 

Tex. Dep’t of Pub. Safety v. Nordin, 971 S.W.2d 90, 93 (Tex. App.—Houston 

[14th Dist.] 1998, no pet.). As the Commission notes in its brief, the Austin Court 

of Appeals has written, “It is not the responsibility of the appellate court to 

pinpoint the issues, marshal the facts, and fashion the argument for an appealing 
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party.” Helle v. Hightower, 735 S.W.2d 650, 654 (Tex. App.—Austin 1987, writ 

denied); see TEX. R. APP. P. 38.1, 38.9. We overrule Issue IV.

In Issue V, Galilee argues that we should find reversible error in the trial 

court’s approval of the Commission’s failure to make any findings in relation to 

public welfare. The Commission did not base its decision upon the public welfare 

issue but, instead, upon Galilee’s failure to meet other criteria; the Commission

need not make unnecessary findings. See Pedernales Elec. Coop., Inc. v. Pub. 

Util. Comm’n of Tex., 809 S.W.2d 332, 337 (Tex. App.—Austin 1991, no writ)

(not required to state facts upon which it did not rely). Issue V is overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

 CHIEF JUSTICE

January 31, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.