### 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. 03-13-00851- CV

Harvey Lee Kunze, A ppellan t

v. Texas Com m ission on En vironm ental Quali ty and City of La Coste, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0201 8, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

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

The City of L a Coste filed an applicat i o n wi t h the Texas Commi ssion on Environmental Quality seeking to rene w its Texas Pollut ant Dischar g e Elimination Sy stem Permit (a “wa stewate r permit” or “wa stewate r discharg e permit”). Severa l months later, the Commi ssion’s executive direc tor rene wed the permit. Thirty day s later, appellant Har vey L ee Kunze filed a petition for judicial revie w of the renewa l decision. The Com mission and the C ity filed separate pleas to 1
the jurisdiction, both asser ting (1) that Kunze was not owed persona l notification of the rene wal application proce eding , and (2) that Kunze had not exhausted any administrative reme dies and thus

was barr ed from seeking judicial revie w. The trial court held a hear ing and signe d an order g ranting the pleas a

nd dismiss ing K

unze’s suit for judicial revie w. We aff irm the trial cour

t’s order

.

Kunze’s suit for judicial revie w was filed ag ainst the Commi ssion, and the City intervene d 1 in ear ly Dec ember

2010.P erm itting F ram ework The Commi ssion ha s the statutory authority to issue wastewa ter discha rg e per mits.
S e e ge n e r a ll y T e x. Wa te r Co d e § § 5.101-.135 (Commissi on’s g ener al power s and duties), 5.551-. 5 5 8 (per mitti ng proce dures) , 26.011-.053 (g ener al power s and duties rela ted to water quality control). 2
The Commi ssion has deleg ated to the executive direc tor the authority to act on an appl i ca t ion to

rene w a wastew ater per m i t wh en : public notice require ments have been satisfied, the executive direc tor has considere d and responde d to public comments, the applicatio n m ee t s statutory and administrative require ments, the application does not require interpre tation of Commi ssion policy , the e xe c u tive direc tor’s staff does not raise objections, and the application is considere d uncontested. 30 Tex. Admin. C ode § 50.133(a) (Executive Direc tor Action on Application or WQMP Update).

When an application is filed, the Commi ssion is to g ive notice of the application “to
any person who may be aff ecte d by the g rant i n g o f t h e p ermit or license.” Tex. Water Code 3 §§ 5.115(b), 26.028(a) (notice of application for permit that will aff ect water quality “shall be g iven
to the persons who in the judgme nt of the [C ]om mission may be aff ecte d by the application”)

. The rules rela ted to public notice provide that the Commi ssion shall mail notice to “landowne rs named

Statute and rule citations are to those in eff ect in 2009, when the City filed its application. 2 All citations to the Texas Administrative Code are to Title 30, “Environmenta l Quality ,” Part I , “Te x as Commissi on on Environmental Qua lity .” An “af fec ted person” is someone with a “pe rs o n al justiciable interest rela ted to a leg al 3 rig ht, duty , privileg e, p o we r, or economic interest aff ecte d by the application,” and an interest “common to members of the g ener al public” does not suffice

. 30 Tex. Admin. Code § 55.103 (De finitions). I n deter

mining whether someone is an aff ecte d p er s o n , the Commi ssion should consider whether the claimed interest is protec ted by law, whether there are limit ations imposed on the interest, wh et h er there is a rea sonable rela tionship betwee n the interest and the activity in question, and what likely impact the activity will have on the perso n ’s health, safe ty , use of his proper ty and natur al re source s. Id. § 55.203(c) (De termination of Af fec ted Person). 2on the

application map or supplemental map, or the sheet attache d to the application map or supplemental map”; “per sons on a rele vant mailing list kept under § 3 9

. 4 0 7 o f t h is title”; the may or and health authorities of the city wher e the fac ility will be lo ca t ed o r waste will be disposed of; and various
ag encie s and off

icials. 30 Tex. Admin. Code § 39.413 (Mailed Notice ); see id. § 39.407 (Mailing
L ists) (Commissi on shall maintain mailing list of persons reque sting notice o f appli cation; “[p] ersons, including participa nts in past ag ency permit proce eding s,” may reque st in writing to be included on list). Howeve r, notice of an application to rene w a wastew ater discharg e permit is not require d to be mailed to adjac ent and downs t rea m landowner s. Id. § 39.551(b)( 2)(A) , (c) (5)( A) (Applica tion for Wastewate r Discha rg e Permit, I ncluding Application for the Dis posal of Sewa g e Sludge or Water Treatment S ludge ). I n addition to the require d mailed not ice, the applicant must also at various stag es o f t h e p ro ceeding publish notice of its application in the local newspa per. See id. §§ 39.405(f) (Ge nera l Notice Provisions), .411 (Text of Publis hed Notice) , .413, .418 (Notice of Rece ipt of Application and I ntent to Obtain Permit), .419 (Notice of Application and Preliminary
Dec ision), .551 (notice of w astewa ter pe rmit applications).

Once an application is deter minated by the executive direc tor to be administratively complete and n o t i ce h as been g iven, time is provided for public comment. See Tex. Water Code § 5.552; 30 Tex. Admin. Code § 39.418; see also 30 Tex. Admin. Code § 39.411 (notice must descr ibe public comm en t proce dures)

. The executive direc tor then conducts a technica l revie w and issues a p re l i m i n ar y d ecision. Tex. Water Code § 5.553(a)

. Notice of that decision is ag ain provided, and the public has the opportunity to comment o r s ee k a contested case hear ing. Id.

3§ 5.553(b); 30 Tex. Admin. Code §§ 39.419 (notice of technica l revie w and preliminary decision),

39.551(c) (3) (notice of preliminary decision g ener ally g ives at least thirty day s for public comment), 55.152(a) (Public Comment Period) (public comment p er iod g ener ally ends thirty day s afte r publication of preliminary decision); see also Tex. Water Code § § 5

. 5 5 4 (executive direc tor may hold public mee t i n gs during comment period), 5.555 (executive direc tor shall respond to timely , rele vant, and materia l public comments), 26.028(c) (Commissi on g ener ally shal l h o ld p u blic hear ing

on wastew ater permit application), (d) (circ u m s t an ces under which Commi ssion may approve

rene wal application without publ ic hea ring ).
An individual may file a motion to overturn the execut i v e d i re ctor’s decision on a permit application within twenty -three day s of the date the Commi ssion mails notice of the action.
30 Tex. Admin. Code § 50.139 (Motion to Over turn Ex ecutive Direc tor). An “af fec ted person” may also file a re q u es t for rec onsideration or a contested case hear ing. Id. § 55.201 (Requests for Reconsider ation or Contested Case Hea ring ). A party who files a timely motion to overturn that is

overr uled by opera tion of law need not file a motion for rehe aring in order to appea l. Id. § 50.139(g ).
A person aff

ecte d by a Commi ssion decision may seek judicial revie w in the trial court. Tex. Water Code § 5.351.
I n making a permit decision, the Commi ssion and the executive direc tor must take into acc ount an applicant’ s compliance history

. 30 Tex

. Ad min. Code §§ 60.1(a) (1)( A) 4

T h e components of a compliance history are : (1) final enfor ceme nt order s, court judgme n ts , 4 and criminal convictions rela ted to compliance with state or fede ral environmenta l rules o r laws; (2) order s develope d under section 7.070 of the water code (g overning ag ree d administrative order s settling alleg ed environmental violation); (3) chronic ex cessive em issions events; (4) information require d by law or other require ment nece ssary to maintain fed era l authorization; (5) dates of 4(Compliance History ), .3 (Use of C ompliance History ). The relevant tim e period is the five y ear s befor e the date the application is rec eived and may be extended “up throug h comp l etion of revie w of the application.” Id. § 60.1(b). After a review of the compli ance history , the ex ecutive direc tor cla s s i fi es t h e applicant as a high, satisfac tory , or unsatisfac tory perf ormer. Id. § 60.2(a) (Classification). A classifica tion may only be appea led if the person or site is classified as an unsatisfac tory perf

ormer or a repe at violator or obtains a satisfac tory classifica tion “with 45 points

or more,” and the appea l must be filed “with the executive direc tor no later than 45 day s afte r notice of the c lassification is posted on the [C] ommissi on’s website.” Id. § 60.3(e)

.

P roce dural an d Fac tual Su m m ary On September 23, 2009, the City filed an ap p l i cation to rene w its wastew ater discharg e permit. The application was decla red administratively complete on October 1, and notice

was published in the local newspa per two wee ks later. On Fe bruar y 2, 2010, technica l revie w was completed, and the ex ecutive director made a preliminary decision t o approve the re newa l; notice of that decision was published in the local paper in Marc h 2010. On May 17, the executive direc tor

rene wed the pe rmit. On J une 16, Kunze filed his petition for judicial r eview.

investiga tions; (6) written notices of violation for up to one y ear “fr om the date of issuance of eac h notice of violation,” except for those deter mined to be without mer it; (7) dates of letters providing notice of an intended audit; (8) environmenta l manag ement sy stems used for env i ro n m en tal c o mp li a n c e ; ( 9 ) v o lu

n ta r y on-site compliance assessments; (10) participa tion in a voluntary pollu ti o n reduc tion prog ram; and (11) “a descr iption of ear ly compliance with or offe r of a product that meets f u tu r e state or fede ral g overnme nt environmenta l require ments.” Id. § 60.1(c) (Complian c e H is to r y )

. T h e ex ecutive direc tor must deter mine whether eac h documented violation is major, minor, o r modera te. Id

. § 60.2(d) (Classification). A person or site is a “re peat violator” if, “on multipl e, separ ate occa sions, major violations of the same nature and the sa me environme ntal media” oc cur in the prec eding five-y ear compliance history

. Id. § 60.2(f)

.

5I n its plea to the jurisdiction, the Commi ssion prese nted a summary o f the City ’s

c o mp li a n c e h is to r y , w h ic h r a

n f r o m Sep te mb e r 1 , 2 0 0 4 , th r o u g h O c to b e r 2 6 , 2 0 0 9

. S e e id

. § 6 0

. 1 ( b )

. 5
The Commi ssion stated that afte r revie wing the City ’s compliance history , a committee deter mined the City was an “ave rag e perf ormer.” See id. §§ 60.1(c) (fa ctors considere d in compliance history

6
revie w), .2(a) (cla ssifications); see also Tex. Water Code § 5.754(b) (ave rag e perf ormer is one that “g eneral l y co m p l[ ies] with environmenta l reg ulations”). Ba sed on that classifica tion and what it char acte rized as t he C ity ’s gene rally quick resp o n s e t o violations, the C ommissi on explained, the executive direc tor made a preliminary decision to approve the rene wal. The Commi ssion a sserted
in its plea that notice of the application’s submissi on and the execut i v e d irec tor’s preliminary d ec i s ion was published in the local newspa pers and provided to the rele vant parties, includ i n g individuals who had asked to be o n a m ai ling list. When no one soug ht a hear ing or lodge d a

co m p l ai nt or comment, the permit was considere d uncontested and was rene wed. No one fi l ed a

Kunze asser

ts that the Commi ssion should have considere d Aug ust 2009 violations. The 5 Commi ssion acknow ledg ed that it was understanda ble that Ku n z e wanted those violations to be considere d but explained that those violations did not result in an agr ee d o rd er until J une 2010, outside the rele vant compliance history tim e p eriod, and wer e there fore not considere d. See id. § 60.1(b) (complianc e period is five y ear s befor e date application is rec eived and may be extended throug h completion of revie w), (c) (ele ments considere d in revie w are , inter alia , “fina l enfor ceme nt order s, court judgme nts, consent decr ees,” dates of investiga tions, and written notices of violations). I n that time period, the Commi ssion c onducted six ty -one investiga tions, resulting in one 6 ag ree d order and six written notices of violations. The ag ree d order was enter ed into by the City and the Commi ssion in April 2008 and was rela ted to two major violations in September 2004—failing to comply with the eff

luent limit for ammonia nitrog en and failing to obtain Commi ssion approva l to discharg e industrial waste into public water s—and one modera te v io la ti o n in M a r c h 2 0 0 4

— f

a iling to comply with eff

luent limit s on dissolved ox y g en. The notices of violations wer e rela ted to three minor violations occur

ring in Marc h 2006 and J une 2009 and three modera te violations in Dec ember 2 0 0 5 , N o v e mb e r 2006, and Marc h 2007; the minor violations wer e resolved by the City ’s submissi on of ce rtain docume ntation, and the moder ate violations wer e all self- repor ted. 6motio n t o o v erturn or rec onsider the rene wal, nor was there a reque st made for a contested

case hear ing. The Commi ssion and the City arg ued that Kunze’s suit should be dismiss ed beca use he had not exhausted his administrative reme dies, asser ting that: the Commi ssion and the City had complied with the applicable statues and rules; individual, mailed notice was not require d to be sent
to adjac ent and downstream landowner s; Kunze had never asked to be place d on the mailing list for information re lated to the City ’s fac ility ; notice of the application was published in the new spaper

as provided by law and rule; and Kunze did not reque st a contested case hear ing or file a motion to
overturn the rene wal decision. The trial court held a hear ing and con cl u d ed t h at the pleas wer e meritorious, signing an orde r g ranting the pleas a nd dismiss ing K

unze’s suit.
Kunze arg ues t hat he was not require d to g ive the Commi ssion the opportunity to

rec onsider the executive direc tor’s rene wal of the City ’s permit beca use section 5.351 of the water code require d him to seek judicial revie w within thirty day s of the executive direc tor’s decision. He

asser ts that the ex haus t i on-of- reme dies doctrine did not require him to file a motion for rehea ring beca use the Commi ssion would not have had the opport u nity to rule on the motion befor e losing jurisdiction to the revie wing court. He also contends that he was not require d to reque st a contested

7case hear ing beca use the rele vant statutes and rules do not provide a rig ht to such a hear ing and 7 beca use he w as not provided the le g al notice he claims he wa s due.

Stand ard of Review A pl ea to the j urisdiction is a dil atory plea a sserting that a trial court lacks subjectmatter jurisdiction. See Texas Dep’ t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 225-26 (Tex. 2004). Whether a court has subject-matter jurisdiction is a question of law that we revie w de novo. Id. at 226

. Although we construe pleading s and their fac tual alleg ations liberally in favor of jurisdiction, when a pl ea t o t h e jurisdiction “cha lleng es the exis tence of jurisdictional fac ts, we consider rele vant evidenc e submitt ed by the parties when nece ssary t o re s olve the jurisdictional issues raised, a s the trial cour t is required to do.” Id . at 226-27.

Notice
We first turn to whether Kunze rec eived proper notice of the permitting proce eding

. When an application for a permit or license is decla red administratively complete, the Commi ssion

The water code allows the Commi ssion to act o n a rene wal application without holding 7 a public hear ing if the applicant is not seeking to signific antly incr ease the quantity of waste or materia lly chang e the pattern or place of discharg e, if the activities will maintain or improve the quality of waste, notice and the opportunity to be hear d is provided, and the Commi ssion deter mines that the applicant’ s compliance history d o es n ot raise conce rns about the applicant’ s ability to comply with p er m i t t er m s
. Tex. Water Code § 26.028(d); see also id

. § 26.028(h) (Commissi on may act without holding public hear ing if notice of application has been published i n p ap er , all persons “who in the judgme nt of the [C ]om mission may be aff ecte d” are provided mailed notice, and no aff ecte d person has reque sted public hear ing)

. L ikewise, the rules provide that the Commi ssion may act on a rene wal application under water code section 26.028(d) without a contested case hear ing if a revie w of the applica

nt’s compliance history

does not raise issues with the applicant’s ability to comply with permit terms. 30 Tex. Admin. Code § 50.113(d)( 4) (Applica bility and Action on Application). 8is to g ive notice of the application “to any person who may be aff ecte d by the g ranting of the permit

or license.” Tex. Water Code §§ 5.115(b), 26.028 (a ) (n o t i ce of wastew ater application “shall be
g iven to the persons who in the judgme nt of the commission may

be aff ecte d by the application”)

. Although notice of a permit application g ener all y m u s t be mailed to landowner s named in the a

pplication, 30 Tex. Admin. Code § 39.413, when the a pplicant see ks only

to rene w its wa stewate r dischar g e per mit, noti ce of

that application to re new is not require d to be mailed to adjac ent and downstream landowner s, id. § 39.551(b)( 2)(A) , (c) (5)( A). The applicant must publish notice in the local paper throug hout the permitting proce ss. See id. §§ 39.405(f) (g ener al provisions),
.411 (text of published notice), .413 (who should rec eive mailed n o t i ce), .418 (notice of filing of application), .419 (notice of technica l revie w and preliminary decision), .551 (notice of wastew ater discharg e per

mit applications). Notice rela

t ed t o the City ’s rene wal application was published in the newspa per when the application was decla red administratively complete, when technica l revie w was complete and preliminary approva l was g iven, and when the permit was issued. Kunze asser ts that he should have been mailed individual notice and that he should be considere d an “af fec ted person.” Howeve r, despite filing multipl e complaints rela ted to the City ’s fac ility , Kunze did not ask to be included on the rele vant mailing lists. Nor does Kunze explain how notice was insufficient under the applicable rules an d statutes or, importantly , explain why rule 39.551, relieving the Commi ssion from the duty to mail him not ice, should not apply

. 8

Kunze asser

ts that his petition alleg ed jurisdictional fac ts showing that he rec eived 8 insufficient notice and that the trial court should have taken as true his fac tual asser tions that he did not rec eive adequa

te notice. To the contra

ry , howeve r, Kunze’s pleading s asser ted legal conclusions 9The evidenc e produce d by the City and the Commi ssion shows t h at t h ey provided

notice in acc ordanc e with the C ommissi on’s rules. We hold (1) that Kunze has not demonstrated that he was entitled to mor e n o t i ce t h an was provided and (2) that the City and Commi ssion complied with the applica ble statutes and r

ules in providing notice of the a pplication.

Exhau stion of

Adm inis trat ive Rem edies As explained ear lier, the ex ecutive director may act on an unconte sted applica tion, id

. § 50.133(a) , and a permit is eff ective when signe d by the executi v e d i re ct o r unless otherwise specifie d, id

. § 50.135 (Eff ective Date of Ex ecutive Direc tor Action). A person d i s s at i s fi ed with the executive direc tor’s decision may file a motion to overturn, aski n g t he Commi ssion to

rec onsider the decision. Id. § 50.139 (“motion to overturn” used intercha ng eably with “motion for

rec onsideration”)

. A m otion to overturn must be filed within twenty -three day s of t he date notice of the decision is ma iled to the applicant a nd “per sons on a

ny require d mailing list for the action.” Id. § 50.139(b). I f a motion to overtur n i s t i m el y fi l ed and not acte d on by the Commi ssion, it is

overr uled by opera tion of law for ty -five da y s afte r notice of the permit was mailed; in suc h a case ,

a motion for rehe aring is not a prer equisite for appea l, and “[ i] f applicable , the [C ]om mission 9

rela ted to notice (in his petition, he stated “that he was not provided the notice he was due” and that reque sting a hear ing in the administrative proce ss would not have been “re ali s tically adequate to addre ss Mr. Kunze’s claims that h e s h o u l d have been provided notice”)

. See Creedmoor-M aha W ater Supply Corp. v. Texas Comm’n on Envtl. Quality , 307 S.W .3d 505, 516 (Tex. App.—Austin 2010, no pet.). The fac ts in this case rela ted to notice are undisputed, and the trial court was there fore empower ed to make the jurisdictional deter mination as a matter of law. See University of Tex. v. P oindexter , 306 S.W .3d 798, 806 (Tex. App.—Austin 2009, no pet.). A person who was provided no t i ce u n d er chapte r 39 but did not timely file a public 9 comment, reque st a hear ing, or participa te in any public meeting or contested case hear ing may file a motion for rehe aring under rule 5 0

. 119 or rule 80.272 or a motion to overturn the executive 10decision may be subject to judicial revie w” under section 5.351 of the water code. Id. § 50.139(f) ,

(g ); see Tex. Water Code § 5.351. An aff ecte d person may also file a reque st for rec onsideration or for a contested case hear ing within thirty day s of the date the executive direc tor’s decision is mailed. 30 Tex. Admin. C ode. § 55.201(a ), (b) . Howeve r, there is no right to a contested case hear ing f or

an application for rene wal of a wastew at er d i s ch ar g e permit if: (1) the applicant is not seeking a signific ant incre ase in the amount of discharg e or materia l chang es to the pattern or p l ac e of discharg e; (2) the permitted activity will maintain or improve the waste quality ; (3) consultation and
response to all timely and signific ant public comments was g iven; and (4) a revie w of the applicant’ s five-y ear compliance history does not raise issues with the applicant’ s ability to comply with permit
terms. Id . § 55.201(i)(5)

.

The City and the Commi ssion a ssert that bec ause K unze did not involve himself in th e administrative proce eding , he did not exhaust his administrative reme dies and thus is barr ed from seeking judicial revie w. Kunze, on the other hand, arg ues that he was only require d to file a petition for judicial revie w within thirty day s of the date the executive direc tor issued the permit, citing for support W

alter W est, P.E. v. Texas Commission on Environmental Quality , 260 S.W .3d 256 (Tex. App.—Austin 2008, pet. denied)

. See Tex. Water Code § 5.351 (per son “af fec ted by ” Commi ssion decision may s ee k j udicial revie w within thirty day s of eff ective date)

. He asser

ts that the Commi ssion would not ha ve been able to a ct on a motion to overturn, for r econside ration, or f or a

direc tor’s decision under rule 50.139, but only to the extent of complaining about chang es from the draf t permit to the final decision. 30 Tex. Admin. Code § 55.201(h) (Requests for Reconsider ation or Contested Case H ear ing)

. 11contes t ed ca se hear ing befor e the thirty -day deadline of section 5.351 had run, making any

exhaustion requirement nonsensic al.

Al t h o u gh Kunze is corr ect that it is unlikely that the Commi ssion would act o n a motion to overturn, due twenty -three day s afte r notice of the executive direc tor’s decision is issued, befor e the thirty -day deadline ran, and althoug h a motion for rec onsideration or for a contested case hear ing has the same thirty -day deadline, we cannot ignor e the fac t that both the water code and the Commi ssion’s rules provide administrative reme dies for parties who object to an action taken by the executive direc tor. The Texas Supreme Court and this Court have repe atedly said that “only a party 1 0
that has exhausted all available administrative reme dies may seek jud i ci al revie w” under section
5.351. Texas W

ater Comm’n v. Dellana , 849 S.W .2d 808, 809-10 (Tex. 1993); see Texas Comm’n

on Envtl. Quality v. Denbury Offshore, LLC , N o. 03-11-00891- CV, 2014 WL 3055912, at *6-7 (Tex. App.—Austin J uly 3, 2014, no pet.) (mem. op.) (if ag ency has exclusive jurisdiction, party must first
pu rsue all administrative reme dies befor e trial court may revie w ag ency ’s decision); Friends of Canyon Lake, Inc. v. Guadalupe- Blanco Rive r Auth. , 96 S.W .3d 519, 526-27 (Te x . App.—Austin 2002, pet. denied) (plaintiffs did not exhaust all available administrative reme dies beca use they did
not seek contested case hear ing afte r p u b l i s h ed notice of application); Larry Koch, Inc. v. Texas Natural Res. Conservation Comm’n , 52 S.W .3d 833, 839 (Tex. App.—Austin 2001, pet. denied) (“e x haustion rule require s that plaintiffs pursue all available reme d ies within the administrative

The Commi ssion’s letter stating that the permit had rec eived final approva l explained that 1 0 a party could file a motion to overturn within t we n t y -t h ree day s of the letter and could also seek judicial revie w under section 5.351 of the water code. The letter ca u t ioned, “Eve n if y ou reque st judicial revie w, y ou still must ex haust y our administrative re medies.” 12proce ss before seeking judicial relief ”). The fac t tha t the administrative reme dies are unlikely to 1 1
have been finalized by the time a party must file his petition for judicial revie w does not excuse him from availing himself of those reme dies. See Heat Energy Advanc ed Tech

. , Inc. v. W est Dallas 1 2
Coal. for Envtl. Justice , 962 S.W .2d 288, 292-93 & n.1 (Tex. App.—Aust in 1998, pet. denied) (petition for judicial revie w filed afte r motion for rehe aring was filed but befor e it was ruled on
proper ly invoked trial cour

t’s jurisdiction).

See also Texas Comm’n on Envtl. Quality v. Bonser-Lain , 438 S.W .3d 887, 894-95 (Tex. 1 1 App.—Austin 2014, no pet.) (“se ction 5.351 of the Water Code must be construed in the context of longsta nding jurisdicti o n al l i m itations on judicial revie w of ag ency order s,” and its “wa iver of immunit y is limit ed to administrative actions that are re gu l at o ry in nature and only upon the exhaustion of all administrative reme dies”); Hendrick s v. Texas Comm’n on Envtl. Quality , No. 03- 10-00758-CV, 2011 WL 2437 6 9 4 , at *3 (Tex. App.—Austin J une 15, 2011, no pet.) (mem. op.) (def err ing to Commi ssion’s interpre tation of its statutes and rules as “ac knowledg [i ng ]” that judicial revie w m ay be available for Commi ssion decision that was subjec t of motion to overturn but “not as stating or imply ing any sort of sequential rela tionship betwee n the two reme dies”); City of Austin v. Texas Comm’n on Envtl. Quality , 303 S.W .3d 379, 383-84 (T ex
. App.—Aust in 2009, no pet.) (“The fac t that an avenue for administrative revie w was open did not fore close judicial revie w also being available , and the fac t that administrative revie w was soug ht did not fore close judicial revie w cea sing to be available .”); City of Donna v. Victoria Palms Resort, Inc. , No. 13-03-00375- CV, 2005 WL 1831593, at *3 (Tex. App.—Corpus Christi Aug

. 4, 2005, pet. denied) (mem. op.) (“When the leg islature vests exclusive jurisdiction in an age n cy , exhaustion of administrative reme dies is require d befor e a pa

rty may seek judicia l reviewof an a g ency ’s ac tion.”). Kunze notes that cer

tain case s cited by the C ity and the Commi ssion rela te t o instances 1 2 in which the Administrative Procedur es Act applies in conjuncti o n w it h s ta tutory scheme s g overning a state ag ency , see Simmons v. Texas State Bd. of Dental Exam’ rs , 925 S.W .2d 652 (Tex. 1996) (per curia m); Heat Energy Advanc ed Tech., Inc. v. W est Dallas Coal. for Envtl. Justice , 962 S.W .2d 288 (Tex. App.—Austin 1998, pet. denied) , and asser ts that those case s do not apply here

. Howeve r, the s a me lo g ic th a

t r e q u ir e s e xh a u s ti o n o f r e me d ie s in a c o n te s te d c a s e a p p li e s h e r e
. A ll o w in g a p a r ty to seek judicial revie w when he did not involve himself at the ag ency level, resulting in the case being unconteste d , without requiring him to exhaust available administrative reme dies, while requiring more of a party who g ot involved in the admini strative procee ding, would encour ag e an obje cting party to lie behind the log and simply seek judicial revie w rathe r than encour ag ing participa tion in the administrative proc ess, t hus defe ating the purpose of t he adminis trative process—to allow the a g e n c y to a d d

r e s s o b je c ti o n s b e f

o r e th e y a r e p r e s e n te d to a tr ia l c o u

r t. S e e , e
. g
. , Strayhorn v. Lexington Ins. Co. , 128 S.W .3d 772, 780 (Tex. App.—Austin 2004), aff’d , 209 S.W .3d 83 (Tex. 2006). 13Nor does our opinion in W alter W est lead us to conclude that exhaustion of reme dies

was not require d. See generally 260 S.W .3d at 260-63. The complaining parties in W alter W est had attempted to intervene in the administrative proce eding an d we re deter mined by the Commi ssion
not to be “af

fec ted parties.” Id. at 258-59. We held that the executive direc tor’s subsequent decision
to g rant the permit, which was deter mined to be uncontested afte r a hear ing reque st was withdrawn by the only person deter

mined to be an aff

ecte d person, was n o t a co n t est ed case subject to the Administrative Procedur es Act. Id. at 261-62. I nstead, the proce eding was g overne d by the water code, which required a suit for judicial revie w t o be filed within t h i rt y day s of t he date the permit

was approve d. Id. at 263. We did not hold in W alter W est that a party wh o was a strang er to the permitting proce eding could seek judicial revie w afte r never having attempted any involvement in the administrative proc eeding

. 1 3

I n an uncontested case such as this, the water code and applicable rules allow a person
to seek fu rt h er ag ency revie w of the executive direc tor’s decision. Be cause there wer e available administrative re medies, Kunze wa s require d to avail him self of the m, whether by filing a motion
to overturn, for rec onsideration, or for a contested case hear ing. He did not do so, and there fore he is barre d from see king judicia l reviewof an a g ency proce eding he wa s not involved in.

To the extent that any lang uag e in footnote 7 of W alter W est, P.E., v. Texas Commission 1 3 on Environmental Quality can be construed as imply ing that a party need not exhaust administrative reme dies befor e seeking judicial revie w of a decision in an uncontested permitting proce eding , such lang uag e is mere dicta. See 260 S.W .3d 256, 262 n.7 (Tex. App.—Austin 2008, pet. denied). 14Conclusion
T h e C o m m ission and the City complied with rele vant statutes and rules rela ted to

n o t i ce of this permitting proce eding

. Be cause Kunze did not seek to employ any of the availab l e administrative reme dies, he may not seek judicial revie w of the permitting decision. We aff irm the trial court’ s order

g ranting the City ’s and the Commission’s pleas to the jurisdiction.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Affir med Filed: Aug ust 14, 2015

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