Supreme Court of Texas

══════════

No. 21-0049

══════════

Pape Partners, Ltd., Glenn R. Pape and Kenneth W. Pape,

Petitioners,

v.

DRR Family Properties LP, 

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Tenth District of Texas

═══════════════════════════════════════

Argued March 24, 2022

CHIEF JUSTICE HECHT delivered the opinion of the Court.

By statute, the Texas Commission on Environmental Quality 

(TCEQ) “has general jurisdiction over . . . water and water rights 

including the issuance of water rights permits[] [and] water rights 

adjudication”.1 The question before us is whether this jurisdiction 

includes the authority to adjudicate conflicting claims to ownership of 

surface-water rights. We hold that the adjudication of such claims is for 

1 TEX. WATER CODE § 5.013(a)(1).
2

the courts, not the agency. We reverse the judgment of the court of 

appeals2 and remand this case to the trial court for further proceedings.

I

A

In 2014, petitioners Pape Partners, Ltd., Glenn R. Pape, and 

Kenneth W. Pape (collectively, Pape)3 purchased from Lola Robinson 

and her closely held corporation, Swirl Investments, a 1,086-acre farm 

in McLennan County, including the right to use water diverted from the 

Brazos River for irrigation under a permit issued by TCEQ. As explained 

further below, TCEQ issues a surface-water-use permit—called a 

certificate of adjudication—to a person whose ownership of “rights to the 

waters of a stream” has been finally determined by a district court after 

both an initial administrative process and then a final judicial process.4

Robinson warranted to Pape that TCEQ had recognized her exclusive 

right to the water covered by the permit.

Robinson first obtained water rights for the farm in two permits 

issued in 1986. The permits did not cover an adjacent 250-acre tract that 

Robinson owned, which had no direct river access or any appurtenant 

water rights. In 1990, Robinson conveyed the 250-acre tract to Swirl. In 

1997, after proceedings initiated by Robinson, TCEQ replaced the two 

1986 permits with a single amended permit. The amended permit 

granted Robinson, individually, the authority to irrigate both the farm 

and the adjacent tract from water-diversion points located on the farm. 

2 623 S.W.3d 436 (Tex. App.—Waco 2020) (2-1). 

3 Pape is pronounced like poppy.

4 TEX. WATER CODE § 11.323(a).
3

Pape alleges that Robinson failed to inform the commission that she no 

longer owned the 250-acre tract. After the amended permit was issued, 

the 250-acre tract changed hands several more times. In 2012, it was 

conveyed to respondent DRR Family Properties, LP.

TCEQ rules provide a process for updating the commission when 

water rights have been transferred. The purchaser must record in the 

county clerk’s office “[t]he written instrument evidencing a water right 

ownership transfer” and then submit to the commission’s executive 

director copies “of the recorded instruments establishing the complete 

chain of title . . . along with a completed Change of Ownership Form and 

an ownership recording fee”.5

After Pape submitted its ownership documentation, the executive 

director updated the commission’s records to reflect that Pape owned the 

water rights appurtenant to the farm. But later, TCEQ identified DRR 

as the owner of the 250-acre parcel for which Robinson was granted

irrigation rights in the 1997 amended permit, and it invited DRR to 

submit its own change-of-ownership application and documentation. 

Other landowners who purchased nearby parcels with chains of title 

traceable to Robinson also filed ownership documentation after being 

notified by the commission of potential water rights. 

In late 2015, acting on DRR’s application, the executive director 

changed TCEQ’s records again, this time to reflect that the water rights 

recorded in the amended permit were owned proportionally by Pape, 

5 30 TEX. ADMIN. CODE § 297.83.
4

DRR, and Robinson. The update had the effect of reducing the amount 

of land Pape is authorized to irrigate from 1,086 acres to 821 acres. 

Pape filed a motion to overturn the director’s decision in 

accordance with the commission’s rules.6 The director’s office prepared 

a response for the full commission, which stressed that “[t]he Executive 

Director’s review for change of ownership requests is ministerial.” The 

response explained:

[I]t is unclear whether Pape Partners is entitled to any 

other relief at the agency level. There is no indication in 

statute or rule that a change of ownership request requires 

anything other than a ministerial act from the 

Commission, recognizing that ownership has changed. 

There is no right to a contested case hearing on a change of 

ownership request, which requires no public notice. . . .

The determination of whether a complete chain of title has 

been established between an owner of record and a new 

owner is made by the Executive Director based upon the 

documentation submitted with a change of ownership 

request . . . .

Pape’s motion was overruled by operation of law in early 2016.7

B

Pape sued DRR, Robinson, Swirl, and several individual 

landowners seeking declarations that it is the sole owner of water rights

appurtenant to the 1,086-acre farm and that none of the defendants 

possess water rights recognized by the 1997 amended permit. With 

respect to the 250-acre tract now owned by DRR, Pape argues that 

because Robinson did not own the tract when the amended permit was 

6 Id. § 50.139(a).

7 See id. § 50.139(f)(2).
5

issued, the surface-water rights granted her with respect to that tract

were personal to her and did not pass with subsequent conveyances of 

the land.8 Pape also pleaded alternative claims for adverse possession, 

to quiet title, and for breach of contract and fraud.

DRR moved to dismiss Pape’s claims for lack of subject-matter 

jurisdiction, arguing that TCEQ has exclusive original jurisdiction to 

determine water-ownership rights and that under TCEQ’s enabling 

statute, Pape could have sued for judicial review of the commission’s 

action on DRR’s application within 30 days but did not.9 The trial court 

granted DRR’s motion to dismiss and then severed all claims against it 

into a separate suit to permit an immediate appeal.10

A divided court of appeals affirmed. The majority concluded, with 

no supporting analysis, that “the regulatory scheme behind surface 

water permits is pervasive and indicative of the Legislature’s intent that 

jurisdiction over the adjudication of surface water permits is ceded to 

8 “[T]he right to use water for the purpose of irrigation is appurtenant 

to the land authorized to be irrigated, and a conveyance of land with an 

appurtenant water right also conveys the water right unless expressly 

reserved or excepted; provided, however, that if the water right has been 

granted for the irrigation of land not owned by the applicant, such a water right 

is personal to the permittee and does not pass with a conveyance of the land.” 

Id. § 297.81(a) (emphasis added).

9 See TEX. WATER CODE § 5.351(a) (providing for judicial review of “a 

ruling, order, decision, or other act of the commission”).

10 An individual defendant, Champagne, filed a motion to dismiss on 

the same grounds as DRR, which was granted by the trial court. Champagne 

appeared as an appellee in the court of appeals but was dismissed by 

agreement before the court rendered judgment.
6

the TCEQ.”11 It thus agreed with DRR that Pape’s only remedy was a

suit for judicial review under Chapter 5 of the Water Code, which by 

then was time-barred. We granted Pape’s petition for review, which is 

supported by amicus submissions from TCEQ itself and three 

agricultural associations.12

II

A

We start with the basic, constitutional rule that “[a] district court 

has subject-matter jurisdiction to resolve disputes unless the 

Legislature divests it of that jurisdiction.”13 “District Court jurisdiction 

consists of exclusive, appellate, and original jurisdiction of all actions, 

proceedings, and remedies, except in cases where exclusive, appellate, 

or original jurisdiction may be conferred by this Constitution or other 

law on some other court, tribunal, or administrative body.”14 Thus, “we 

presume that [the] district court has subject-matter jurisdiction” to 

resolve a claim.15 And historically, “the power to determine controverted 

rights to property” has been “vested in the judicial branch.”16

11 623 S.W.3d at 440.

12 The Texas Water Conservation Association, the Texas and 

Southwestern Cattle Raisers Association, and the Texas Farm Bureau.

13 In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. 2021) (citing 

In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004)).

14 TEX. CONST. art. V, § 8.

15 Oncor, 630 S.W.3d at 44.

16 Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 

S.W.2d 618, 635 (Tex. 1996) (citing Bd. of Water Eng’rs v. McKnight, 229 S.W. 

301, 304 (Tex. 1921)).
7

By contrast, “there is no presumption that administrative 

agencies are authorized to resolve disputes. Rather, they may exercise 

only those powers the [Legislature], in clear and express statutory 

language, [has] confer[red] upon them.”17 “Courts will not imply 

additional authority to agencies, nor may agencies create for themselves 

any excess powers.”18 Because of the presumption in favor of districtcourt jurisdiction and the narrowness of administrative-agency 

jurisdiction, “the burden to demonstrate that exclusive jurisdiction rests 

with an administrative agency falls on the party resisting the district 

court’s jurisdiction.”19

“Whether an agency has exclusive jurisdiction depends on 

statutory interpretation.”20 Specifically, we look for either an express 

grant of exclusive original jurisdiction to the agency or a “pervasive 

regulatory scheme” indicating that the Legislature intended “the 

[administrative] process to be the exclusive means of remedying the 

problem” presented.21 The relevant statutes here are in Chapters 5 and 

17 Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 

220 (Tex. 2002) (collecting cases); see also Oncor, 630 S.W.3d at 45 (citing 

Subaru).

18 Subaru, 84 S.W.3d at 220.

19 Oncor, 630 S.W.3d at 44-45 (citing Entergy, 142 S.W.3d at 322).

20 Entergy, 142 S.W.3d at 322 (citing Subaru, 84 S.W.3d at 221).

21 Id. (quoting Subaru, 84 S.W.3d at 221).
8

11 of the Water Code.22 Our analysis begins with their plain text.23 But 

“[w]hen construing statutes, or anything else, one cannot divorce text 

from context.” 24

B

Chapter 5 is TCEQ’s enabling statute. It sets forth the 

commission’s role as “the agency of the state given primary 

responsibility for implementing the constitution and laws of this state 

relating to the conservation of natural resources and the protection of 

the environment.”25 And it contains general but detailed rules about the 

commission’s membership, governance, staff, and operations. DRR 

argues that TCEQ’s exclusive original jurisdiction to decide conflicting 

claims to surface-water rights is established in Section 5.013, titled 

“General Jurisdiction of Commission”. Subsection (a) lists twelve areas 

that the Legislature has granted the commission “general jurisdiction 

over”. The first area is:

water and water rights including the issuance of water 

22 Our opinion in City of Marshall v. City of Uncertain documented the 

history of Texas water law from the Spanish or Mexican law that governed preindependence, to the English common law adopted post-independence, and on 

through the series of statutory schemes the Legislature began adopting in the 

late 1800s. 206 S.W.3d 97, 101-103 (Tex. 2006). We described this history as “a 

hodge-podge of historical and contradictory water rights systems.” Id. at 101

(citation omitted). Fortunately, we need only examine two chapters of the 

Water Code to decide the issue presented here.

23 See, e.g., Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex.

2022) (“In construing a statute, our objective is to determine and give effect to 

the Legislature’s intent. We begin by examining the plain meaning of the 

statute’s language.” (citations and quotation marks omitted)).

24 In re Off. of the Att’y Gen., 456 S.W.3d 153, 155 (Tex. 2015).

25 TEX. WATER CODE § 5.012.
9

rights permits, water rights adjudication, cancellation of 

water rights, and enforcement of water rights[.]26

The other areas of the commission’s general jurisdiction are:

• supervision of conservation districts established under the Texas 

Constitution;

• determining “the feasibility of certain federal projects”; 

• administering programs that regulate water quality, dam 

construction, hazardous waste, injection wells, underground 

water, and regional waste disposal; 

• duties assigned to the commission in several chapters of the 

Health and Safety Code; and 

• “any other areas assigned to the commission by this code and 

other laws of this state.”27

Seven subchapters later, Section 5.351 provides that “[a] person 

affected by a ruling, order, decision, or other act of the commission” may, 

within 30 days, file a suit for judicial review in Travis County district 

court.28 Because this section “does not specify the standard of review”, 

we have applied an abuse of discretion standard to a suit under Section 

5.351 that did not arise from a contested case.29 DRR argues that the 

reference to water rights adjudication in Section 5.013(a) grants TCEQ 

exclusive jurisdiction to decide conflicting claims to water rights. DRR 

also contends that Pape should have sought judicial review of TCEQ’s 

actions on DRR’s application under Section 5.351 within the 30-day 

26 Id. § 5.013(a)(1) (emphasis added).

27 Id. § 5.013(a)(2)-(12).

28 Id. § 5.351(a)-(b).

29 Brazos Elec. Power Coop., Inc. v. Tex. Comm’n on Env’t Quality, 576 

S.W.3d 374, 383 (Tex. 2019).
10

window provided for in that section.30

C

Water rights adjudication is not defined in Chapter 5 or even 

mentioned again after Section 5.013. But Chapter 11 is entirely devoted 

to water rights and their adjudication. Its opening provisions paint the 

water-rights-ownership landscape: The water in or provided by rivers, 

streams, lakes, bays, the Gulf of Mexico, storms, floods, rain, canyons, 

ravines, depressions, and watersheds “is the property of the state.”31

These waters “are held in trust for the public, and the right to use state 

water may be appropriated only as expressly authorized by law.”32

Subchapter G codifies the Water Rights Adjudication Act.33 Its 

purpose is to promote “[t]he conservation and best utilization of the 

water resources of this state” by “requir[ing] recordation with the

commission of claims of water rights which are presently

unrecorded . . . and . . . provid[ing] for the adjudication and 

30 DRR makes an alternative argument that Pape could have requested 

a contested-case hearing and then pursued judicial review under the 

Administrative Procedure Act, TEX. GOV’T CODE §§ 2001.171-2001.176. The 

commission’s rules address the procedure for requesting a contested-case 

hearing, but they also make clear that a contested-case hearing must be 

authorized by “other laws.” 30 TEX. ADMIN. CODE § 55.101(f)(6). DRR has not 

pointed to any statutory authorization for a contested-case hearing on a change

of ownership submitted to the executive director, and we have found none. 

Furthermore, as explained above, TCEQ took the position in its response to 

Pape’s motion to overturn the director’s decision that a contested-case hearing 

was not available to Pape.

31 TEX. WATER CODE § 11.021(a).

32 Id. § 11.0235(a); see also id. § 11.023(a)(2) (listing “agricultural uses” 

among the purposes for which water may be appropriated).

33 Id. §§ 11.301-11.341.
11

administration of water rights to the end that the surface-water 

resources of the state may be put to their greatest beneficial use.”34 The 

provisions that follow explain the administrative process in which water 

rights are adjudicated. Read together, they make clear that the 

Legislature has used water rights adjudication as a term of art for the 

commission’s process of allocating the rights to the water of a particular 

source in a manner that is consistent with the public interest. 

Adjudication is shorthand for the commission’s decision to issue waterrights permits for a particular “stream or segment”. A stream or 

segment that has been adjudicated is one for which the commission has 

issued the permits known as certificates of adjudication.

After a petition for adjudication is filed, “the 

commission . . . consider[s] whether the adjudication would be in the 

public interest.”35 “If the commission finds that an adjudication would 

be in the public interest,” then its executive director gathers technical 

data, which may include maps or plats showing “the course of the stream 

or segment and the location of reservoirs, diversion works, and places of 

use, including lands which are being irrigated or have facilities for 

irrigation.”36 The commission publishes a notice37 after which “[e]very 

person claiming a water right . . . from the stream or segment under 

adjudication shall file a sworn claim with the commission” that includes 

34 Id. § 11.302.

35 Id. § 11.305(a). 

36 Id. § 11.305(a)-(b).

37 Id. § 11.306.
12

the location of their property and other relevant information.38 The 

commission holds a hearing,39 “make[s] a preliminary determination of 

the claims to water rights under adjudication”,40 holds another hearing 

on any contests filed,41 makes a final determination,42 and considers 

applications for rehearing.43

Finally, there are proceedings “in [the] district court of any county 

in which the stream or segment under adjudication is located”44—not 

necessarily the Travis County district court, where an appeal taken 

under Chapter 5 would be filed.45 The commission files with the court 

its final determination and all the evidence presented, any party to the 

administrative proceedings can file exceptions, and the court will hold a 

hearing.46 But the statute mandates that the court “determine all issues 

of law and fact independently of the commission’s determination.”47

“The substantial evidence rule shall not be used.”48 The district court’s 

“final decree in every water right adjudication is final and conclusive as 

38 Id. § 11.307(a)(1)-(5).

39 Id. § 11.308.

40 Id. § 11.309(a).

41 Id. §§ 11.313-11.314.

42 Id. § 11.315.

43 Id. § 11.316.

44 Id. § 11.317(a).

45 See id. §§ 5.351, 5.354.

46 See id. §§ 11.317-11.319.

47 Id. § 11.320(a).

48 Id.
13

to all existing and prior rights and claims to the water rights in the 

adjudicated stream or segment of a stream.”49 The decree is even 

“binding on all claimants to water rights outside the adjudicated stream 

or segment of a stream.”50 After the district court proceedings are 

completed and any appeals have been exhausted,51 “the commission 

shall issue to each person adjudicated a water right a certificate of 

adjudication”52—or permit—which is recorded in the county clerk’s 

office.53 After three years, the permit holder “acquires title” to the water 

rights allocated him,54 and they become permanent rights that “pass[] 

with the title to land.”55 The administrative and judicial processes 

outlined in the Water Rights Adjudication Act are the same processes 

that produced the permits that TCEQ issued to Robinson.

D

Reading these statutes’ plain text together and in context makes 

clear that the Legislature’s grant of jurisdiction to TCEQ in 

Section 5.013(a)(1) over “water and water rights including the issuance 

of water rights permits, water rights adjudication, cancellation of water

rights, and enforcement of water rights” is a reference to Chapter 11 and 

the Water Rights Adjudication Act specifically. Nothing in that Act gives 

49 Id. § 11.322(d).

50 Id.

51 See id. § 11.322(c).

52 Id. § 11.323(a).

53 Id. § 11.324(a).

54 Id. § 11.029.

55 Id. § 11.040(a).
14

TCEQ authority to decide conflicting claims to water rights acquired 

with the title to land. Indeed, the administrative process that Pape 

initiated after purchasing Robinson’s farm is provided for not by statute 

but by two of the commission’s administrative rules. All the rules say is 

that “[a]n owner of a water right . . . shall promptly inform the executive 

director of any transfer of water right or change of the owner’s address”56

and then file a form, chain-of-title documents, and a fee with the 

director.57

TCEQ agrees. In an amicus filing, the commission explains that 

“[t]he term ‘water rights adjudication’ referenced [in Section 5.013(a)(1)] 

is a term of art under the Texas Water Code and relates to the 

Commission’s issuance of certificates of adjudication” that entail the 

commission’s “determining the amount of use, place of use, purpose of 

use, point of diversion, rate of diversion, and where appropriate, the 

acreage to be irrigated.”58 This is, in TCEQ’s own words, an 

“administrative record-keeping function”.59 Only a judicial process can 

determine property ownership. 60

56 30 TEX. ADMIN. CODE § 297.82.

57 Id. § 297.83.

58 Amicus Curiae Br. of TCEQ at 1.

59 Id. at 2.

60 Pape also argues that the Legislature’s giving TCEQ jurisdiction over 

disputes about the title of real property would violate the constitutional 

doctrine of Separation of Powers. See TEX. CONST. art. II, § 1; McKnight, 229 

S.W. at 307 (declaring unconstitutional a statute giving a TCEQ predecessor 

agency the right to adjudicate conflicting claims to surface-water rights). In 

the court of appeals’ view, the doctrine posed no obstacle to its interpretation 

of the Water Code because another constitutional provision, Article 16, 
15

* * * * * 

We hold that TCEQ lacks jurisdiction to decide conflicting claims 

of ownership to surface-water rights. Accordingly, we reverse the court 

of appeals’ judgment and remand this case to the trial court for further 

proceedings.

 

 Nathan L. Hecht

 Chief Justice

OPINION DELIVERED: May 20, 2022

Section 59, empowers the Legislature to delegate the resolution of property 

disputes to TCEQ. See 623 S.W.3d at 441-442. Because we conclude that the 

Water Code does not authorize TCEQ to resolve property disputes, we need not 

address this part of the court of appeals’ analysis.